Citation Nr: 0811365 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 04-22 376 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to a rating in excess of 10 percent for chronic low back pain, claimed as L4-5 radiculopathy. ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The veteran had active duty service from August 1995 to October 1999. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied entitlement to a rating in excess of 10 percent for chronic low back pain. During the course of the appeal, the veteran relocated to North Carolina in March 2006 and the claims file was transferred to the custody of the RO in Winston-Salem, North Carolina, which is now the agency of original jurisdiction. The veteran failed to report to hearings scheduled at the RO with a hearing officer in March 2007 and with a Veterans Law Judge (VLJ) in March 2008. REMAND As an initial matter, the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Court, are applicable to this matter. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (hereinafter "the Court") issued a decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), concerning increased-compensation claims and finding that section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, 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. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, 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 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. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (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. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, 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. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Unfortunately, the veteran, who does not have a representative, did not receive adequate notice of information concerning the VCAA in reference to the issue on appeal. Consequently, appropriate action should be taken to ensure adequate VCAA notice as to the type of evidence necessary to substantiate the veteran's claim for a rating in excess of 10 percent for chronic low back pain is provided. Accordingly, in view of the foregoing discussion, the case is REMANDED for the following actions: 1. The AMC/RO is to provide the veteran VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to substantiate her increased rating claim on appeal, as outlined by the Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Concerning Vazquez-Flores, the AMC/RO should provide notice informing the claimant that she may submit evidence showing the effects of the worsening or increase in severity of her service- connected back disability upon her daily life and employment. The AMC/RO should also provide notice of the specific old and revised rating criteria necessary for the assignment of a rating in excess of 10 percent for chronic low back pain under 38 C.F.R. § 4.71a, Diagnostic Codes 5285-5295 (2002) and The General Rating Formula for Diseases and Injuries of the Spine, including 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2007). 2. The AMC/RO should contact the veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the veteran for her service- connected chronic low back pain since July 2002. After the veteran has signed the appropriate releases, those records not already associated with the claims folder, should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the veteran, a notation to that effect should be inserted in the file. The veteran is to be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If the benefit sought on appeal remains denied, the veteran should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). _________________________________________________ RENÉE M. PELLETIER 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).