Citation Nr: 0811038 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 06-03 605A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating for degenerative joint disease of the right knee greater than 10 percent from February 19, 2004, and greater than 20 percent from August 3, 2004. REPRESENTATION Appellant represented by: Lisa A. Lee, Attorney at Law ATTORNEY FOR THE BOARD W. R. Harryman, Counsel INTRODUCTION The veteran had active duty from November 1973 to October 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Previously, service connection had been established for right knee patellofemoral pain syndrome. A rating decision in March 2005 assigned a separate 10 percent rating for degenerative joint disease of the right knee, effective from February 19, 2004, and a 20 percent rating, effective from August 3, 2004. In September 2005, a Board decision in a prior appeal found that a letter from the veteran's attorney, dated in March 2005, constituted a notice of disagreement (NOD) to the RO's action in the March 2005 rating decision. The September 2005 Board decision remanded the case for the RO to issue a statement of the case (SOC) regarding the issue concerning the proper initial rating for the disability. The Board notes that the September 2005 Board decision also remanded five other issues: 1) whether new and material evidence has been presented to reopen a claim for service connection for recurrent dislocation of the left knee with chondromalacia; 2) whether new and material evidence has been presented to reopen a claim for chondromalacia of the right knee; 3) entitlement to an effective date prior to July 30, 1997, for service connection for chondromalacia patella of the right knee with degenerative changes; 4) entitlement to an effective date prior to July 30, 1997, for service connection for chondromalacia patella, status post patellar tendon realignment with degenerative changes of the left knee; and 5) entitlement to service connection for pes planus as secondary to the service-connected bilateral knee disability. However, in rating decisions in February 2006 and June 2006, the RO granted service connection for the claimed disabilities and assigned an effective date of December 1, 1980, for the veteran's knee disabilities. The record does not reflect that the veteran has disagreed with the ratings that were assigned or with the effective dates. Therefore, the RO's actions satisfied the veteran's prior appeal as to those issues and no issue relating to them remains for appellate consideration. The only issue currently before the Board is as stated above. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In January 2008, after the RO had transferred the claims file to the Board, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the case of Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). The Court held in Vazquez that, with respect to increased rating claims, notice pursuant to 38 U.S.C.A. § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate such a claim, (1) the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the Diagnostic Code (DC) under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant DCs, which typically provide for a range in severity of a particular disability from 0% to as much as 100% (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. The record shows that the last action taken by the RO in this case as to this issue was to issue an SOC in February 2006, pursuant to the Board's September 2005 remand. On review of the file, the Board finds that the veteran has not been provided with notice compliant with Quartuccio v. Principi, 16 Vet. App. 183 (2002). He was sent a letter in March 2006 that provided him with the general criteria for establishing ratings and effective dates after service connection has been granted, pursuant to Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). However, the veteran has not been provided with any notice that complies with the criteria required by Vazquez. The Board also observes that the most recent VA compensation examiner, in January 2005, did not comment on the effect of the service-connected degenerative joint disease of the veteran's right knee on his employment and daily life. The veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2007). Accordingly, the case is REMANDED for the following actions: 1. Notify the veteran that, to substantiate his claim, he must provide - or ask the Secretary to obtain - medical or lay evidence demonstrating worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life. Notify him that degenerative arthritis of his right knee is rated on the basis of limitation of motion, and that, should an increase in disability be found, a disability rating will be determined by applying the relevant diagnostic codes - Code 5260 (which rates limitation of flexion of the knee joint) and Code 5261 (which rates limitation of extension) - that provide for a range in severity of a particular disability from 0% to as much as 50%, based on the nature of his symptoms, their severity and duration, and their impact upon employment and daily life. Also provide him with examples of the types of medical and lay evidence that he may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to greater compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing greater impairment or exceptional circumstances relating to the disability. 2. Schedule the veteran for a VA compensation examination to evaluate his right knee. The claims file must be provided to the examiner to review in conjunction with the examination. The examiner's report should describe all current symptoms and pertinent clinical findings, and should also indicate the effect the degenerative joint disease of the veteran's right knee has on his employment and daily life. The examiner should note that service connection is also in effect for right knee patellofemoral pain syndrome. To the extent possible, the examiner should distinguish symptoms and abnormal clinical findings that are due to patellofemoral pain syndrome, including the effect of that disability on the veteran's employment and daily life. 3. Then, readjudicate the veteran's claim for a greater initial rating for degenerative joint disease of the right knee. If action taken is not to the veteran's satisfaction, provide him and his attorney with a supplemental statement of the case (SSOC) and give them an appropriate period of time to respond before returning the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ MARY GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).