Citation Nr: 0811295 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 99-17 275 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York THE ISSUES Entitlement to a disability rating in excess of 10 percent for a right knee disability. Entitlement to a disability rating in excess of 10 percent for a left knee disability. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The veteran served on active duty from January 1977 to January 1981 and from April 1983 to October 1989. This appeal was previously before the Board of Veterans' Appeals (Board) in September 2004, when the Board declined to reopen a finally-denied claim for entitlement to service connection for degenerative joint disease of the lumbosacral spine, and denied increased disability ratings for disability of the right knee, the left knee, and postoperative residuals of a fracture of the right scaphoid. The veteran appealed the issues of entitlement to increased disability ratings for the right and left knee to the United States Court of Appeals for Veterans Claims (Court). In an October 2005 Order, the Court granted a joint motion filed by both parties, vacating that portion of the September 2004 decision which had denied increased disability ratings for the veteran's right and left knee disabilities; and remanding these issues to the Board for further evidentiary development and review. In a June 2006 Remand, the Board remanded the appeal to the VA's Appeals Management Center for further evidentiary and procedural development, consistent with that described in the joint motion for remand. Such development having been completed, the matter is once again before the Board for further appellate review. Unfortunately, due to a superseding change in the law, the appeal must be remanded once again. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action on his part is required. REMAND When an application for benefits is received, VA has certain notice and assistance requirements under the Veterans Claims Assistance Act (VCAA). See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). First, proper notice should be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant's possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the recent case of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court established significant new requirements with respect to the content of the duty-to-assist notice which must be provided to a veteran, such as this one, who is seeking a higher disability rating. Applying these principles to the present case, the Board finds that the veteran has been provided with VCAA notification, but it does not meet the new requirements set forth in Vazquez-Flores v. Peake. In this regard, the letters did not include at least a general description of the criteria necessary to demonstrate entitlement to a higher rating. Additionally, it does not appear that the veteran has been provided with the substance of Diagnostic Codes 5260 or 5261, which provide specific criteria for the evaluation of knee disabilities, at any point during this current appeal period. Therefore, a remand to provide adequate pre-decisional notice as to these elements of his claims is required. The veteran continues to receive medical treatment from the VA. However, due to the length of time that this appeal has been on-going, the most recent VA treatment records contained in his claims file are dated in 2003. Any VA medical records are deemed to be constructively of record in proceedings before the Board and should be obtained prior to further review of the claims file. Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The RO must review the claims file and ensure that all notification actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A, as interpreted by Vazquez- Flores, are fully complied with and satisfied, to include informing him that he may submit evidence showing the effects of any worsening or increase in severity upon his employment and daily life, and informing him of the specific criteria contained in Diagnostic Codes 5260 and 5261. See also 38 C.F.R. § 3.159. 2. The RO should obtain all records of VA medical treatment afforded to the veteran subsequent to 2003. 3. After the development requested above has been completed, the RO should again review the record, performing any additional evidentiary development which may become necessary following the above actions. If either benefit sought on appeal remains denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The veteran has the right to submit additional evidence and argument on the 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 or by the Court 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). _________________________________________________ MICHAEL E. KILCOYNE 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).