Citation Nr: 0811292 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 98-15 619A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUES 1. Entitlement to a rating in excess of 10 percent for low back pain with degenerative disc disease at L3-L4, for the period prior to May 18, 1999. 2. Entitlement to a rating in excess of 20 percent for low back pain with degenerative disc disease at L3-L4, for the period from May 18, 1999 through August 15, 2007. 3. Entitlement to a rating in excess of 40 percent for low back pain with degenerative disc disease at L3-L4, for the period from August 16, 2007. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The veteran served on active duty from September 1967 to April 1970. This appeal to the Board of Veterans' Appeals (Board) initially arose from an October 1997 rating decision in which the RO denied entitlement to a compensable rating for low back pain. In July 1998, the veteran filed a notice of disagreement (NOD); and the RO issued a statement of the case (SOC) in August 1998. The veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 1998. The RO issued a supplemental SOC (SSOC) in February 1999. In a July 2002 rating decision, the RO recharacterized the veteran's disability as low back pain with mild degenerative disc disease at L3-L4 and assigned a 10 percent rating, effective June 4, 1997, the date of the claim. In a March 2003 rating decision (as reflected in an SSOC issued the same month), the RO recharacterized the veteran's disability as low back pain with degenerative disc disease at L3-L4 and assigned a 20 percent rating, effective May 18, 1999. In December 2003, the veteran testified during a Board hearing before an Acting Veterans Law Judge (AVLJ) at the RO; a transcript of the hearing is of record. In November 2004, the Board remanded the matters on appeal to the RO, via the Appeals Management Center (AMC), in Washington, DC, for further notice and development. In a September 2007 rating decision issued along with an SSOC in October 2007, the AMC assigned a 40 percent rating for the veteran's low back disability, effective August 16, 2007, the date of VA examination. While the RO/AMC has assigned higher ratings of 10, 20 and 40 percent for the disability under consideration for three separate periods during the pendency of this appeal, as higher ratings are available during each period, and the appellant is presumed to be seeking the maximum available benefit, the Board has recharacterized the appeal as now encompassing the three matters set forth on the title page. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In February 2008, the Board notified the veteran that the AVLJ that conducted the December 2003 hearing was no longer employed at the Board and that he was entitled to another hearing, if he so desired, in accordance with 38 U.S.C.A. § 7107(c) (West 2002) (providing that the member or members designated to conduct a hearing shall participate in making the final determination of a claim on appeal). The veteran responded that he did not want another hearing. For the reasons expressed below, the matters on appeal are, again, being remanded to the RO via the AMC, in Washington, DC. VA will notify the veteran when further action, on his part, is required. As a final preliminary matter, the Board notes that, in a February 2005 statement, it appears that the veteran raised a claim for service connection for a psychiatric disorder, as secondary to his service-connected back disability. As this matter has not been adjudicated by the RO, it is not properly before the Board; hence, it is referred to the RO for appropriate action. REMAND Unfortunately, the claims file reflects that further RO action on the appeal is warranted, even though such will, regrettably, further delay an appellate decision on these issues. The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). Since the passage of the VCAA, various court cases have further defined VA's duty to notify claimants. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Although the September 2007 SSOC included the notice required by Dingess/Hartman, there is no general notice letter to the veteran contained in the record describing the assignment of disability ratings and effective dates in connection with his higher rating claims. Similarly, the collective notices of the RO/AMC in the record fail to meet specific notice requirements applicable to claims for increased ratings discussed by the United States Court of Appeals for Veterans Claims (Court) in a recent decision, Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In Vazquez-Flores, the Court found that, at a minimum, adequate VCAA notice requires that VA notify the claimant that, to substantiate an increased rating claim: (1) the claimant must provide, or ask VA 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 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 diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Regarding notice as required by Vazquez-Flores, the Board notes that the December 2004 VCAA letter provided some of the notice required in (1) and (4) above in relation to his claims for higher ratings. However, this notice did not inform the veteran that he should provide either lay or medical evidence of the effect that worsening of his disability has on his employment and daily life or that should an increase in disability be found a disability rating will be determined by applying relevant diagnostic codes and could be as high as 100 percent. In addition, the RO has not given the general notice required by (2) above. Accordingly, due process requires that notice to the veteran that meets the requirements of Dingess/Hartman -particularly as regards assignment of disability ratings and effective dates-and of Vazquez-Flores-particularly that specified in (1), (2) and (3) above-must be provided. As action by the RO is needed to fulfill the notification provisions of the VCAA (see, e.g., Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003) and Pelegrini v. Principi, 18 Vet. App. 112 (2004)), a remand of these matters to the RO is warranted. On remand, the RO should, through VCAA-compliant notice, give the veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103 (b)(1)(West 2002); but see also 38 U.S.C.A. § 5103(b)(3)) (West Supp. 2007) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should also invite the appellant to submit all pertinent evidence in her possession, and ensure that its notice to the veteran meets the notice requirements of Dingess/Hartman and Vasquez Flores, as outlined above. After providing the appropriate notice, the RO should obtain any additional evidence for which the veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2007). The Board also finds that specific additional development in this appeal is warranted. In this regard, the record reflects that the veteran has received, and may be receiving, additional evaluation and/or treatment for his back disability at the VA Medical Center (VAMC) in Brooklyn, New York. The claims file currently includes VA treatment records from the Brooklyn VAMC through December 21, 2006. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain all outstanding pertinent VA medical records since December 21, 2006, following the current procedures prescribed in 38 C.F.R. § 3.159 (2007) as regards requests for records from Federal facilities. The actions identified herein are consistent with the duties to notify and assist imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full VCAA compliance. Hence, in addition to the actions requested above, the RO should also undertake any other development or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following action: 1. The RO should obtain from the Brooklyn VAMC all outstanding pertinent records of evaluation and/or treatment of the veteran's back, from December 21, 2006 to the present. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should send to the veteran and his representative a letter requesting that the veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claims on appeal that is not currently of record. The RO should also invite the veteran to submit all pertinent evidence in his possession, and explain the type of evidence that is his ultimate responsibility to submit. The RO should ensure that its letter meets the requirements of Dingess/Hartman and Vazquez/Flores, cited to above (as appropriate). In particular, the RO must notify the veteran that, to substantiate his increased rating claim that he must provide, or ask VA to obtain, medical or lay evidence showing the effect that worsening or increase in severity of his back disability has on his employment and daily life. In addition, the RO must provide at least general notice of all possible diagnostic codes under which the veteran's back disability may be rated, to include former Diagnostic Codes 5292, 5293 and 5295 and current General Rating Formulas under 38 C.F.R. § 38 C.F.R. § 4.71a. The notice should also explain that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes and could be as high as 100 percent; such notice must also provide examples of the types of medical and lay evidence that the veteran may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation; and that the effective date of an increase in disability will be established as of the date the evidence shows that the level of disability supports such a rating. The RO's letter should clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the veteran responds, the RO should assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records and responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. To help avoid future remand, the RO must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested action, and any additional notification and development deemed warranted, the RO should readjudicate the higher rating claims on appeal in light of all pertinent evidence and legal authority. 6. If any benefit sought on appeal remains denied, the RO must furnish to the veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process, it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time period. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2007).