Citation Nr: 0811431 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 98-18 042A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an increased disability evaluation for residuals of a right total knee arthroplasty, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G.A. Wasik, Counsel INTRODUCTION The veteran had active duty service from January 1951 to January 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1998 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) that denied the veteran's claim of entitlement to a disability evaluation in excess of 30 percent for his service-connected residuals of a right total knee arthroplasty. In a September 2002 decision, the Board confirmed the RO's decision on appeal and continued the denial of the veteran's claim of entitlement to an increased disability evaluation for his service-connected right knee disorder. The veteran appealed the Board's September 2002 decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In a February 2005 Order, the CAVC vacated the September 2002 decision and remanded the matter to the Board for re-examination of the evidence of record, the pursuit of any other evidence deemed necessary, and the timely re- adjudication of the claim. The issue on appeal was again before the Board in August 2005 when the claim was denied. The veteran appealed the Board's August 2005 decision to the Court. In an August 2007 decision, the Court vacated the August 2005 decision and remanded the matter to the Board. In January 2008, the undersigned granted the veteran's motion to advance this case on the Board's docket due to advanced age pursuant to 38 C.F.R. § 20.900(c). 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 on his part. REMAND As noted above, the Court has vacated the Board's August 2005 denial of the veteran's claim. The Court found that the Board failed to adequately consider the provisions of 38 C.F.R. § 4.40 when evaluating the veteran's right knee disability. The Court also determined that the Board erred in relying on a report of a July 2000 VA examination when denying the claim. The Court specifically determined that the veteran should be afforded a new VA examination to evaluate his right knee. A remand is required in order to afford the veteran an appropriate examination. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and; 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. The Board has interpreted this ruling to apply to increased ratings claims also. Another pertinent decision which was issued during the pendency of this appeal is the case of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), in which the Court established significant new requirements with respect to the content of the duty-to-assist notice which must be provided to a veteran who is seeking a higher rating. With respect to increased rating claims, the Court found that, at a minimum, a 38 U.S.C. § 5103(a) notice requires that the Secretary notify the veteran that, to substantiate such a claim: (1) the veteran 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 veteran's employment and daily life; (2) if the Diagnostic Code (DC) under which the veteran is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the veteran demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening on the veteran'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 veteran; (3) the veteran 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 veteran 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. Applying these principles to the present case, the Board finds that the veteran has not been provided with any notification letter which meet the requirements set forth in Dingess/Hartman v. Nicholson and Vazquez-Flores v. Peake, supra. A remand is required to correct these deficiencies. Accordingly, the case is REMANDED for the following action: 1. VCAA notice must be provided to the veteran which includes notification that the veteran 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 veteran's employment and daily life; notification of the rating criteria used to evaluate the knee claim to include the rating criteria set out in Diagnostic Codes 5055, 5256, 5257, 5260, 5261 and 5262; notification 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 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 notification providing examples of the types of medical and lay evidence that the veteran 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. Additionally, the veteran must be provided notification as to the information or evidence needed to establish a disability rating and effective date for the claim. 2. Schedule the veteran for a VA examination to determine the current severity of the service-connected right knee disability. The veteran's claims folders should be made available to and pertinent documents therein reviewed by the examiner. The examination report should reflect that such a review was conducted. The examiner's report should set forth range of motion studies and the examiner should identify the range of motion affected by pain. The extent of any incoordination, weakened movement and excess fatigability on use should also be described. To the extent possible, the functional impairment due to incoordination, weakened movement, pain and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion. The examiner should comment as to whether the veteran's subjective reports of pain are substantiated or are otherwise capable of substantiation. The examiner should comment on any weakness, pain on use, or other symptoms during flare-ups. The examiner should also comment on whether chronic residuals of the knee replacement consist of severe, painful motion or weakness in the right leg. 3. The claim should be readjudicated. If the benefit sought on appeal is not granted to the veteran's satisfaction, the veteran and his representative should be provided a supplemental statement of the case and be afforded the appropriate opportunity to respond. The appellant and his representative have 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). _________________________________________________ BARBARA B. COPELAND 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).