Citation Nr: 0811453 Decision Date: 04/07/08 Archive Date: 04/23/08 DOCKET NO. 01-01 581A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to a rating in excess of 50 percent for post- traumatic stress disorder (PTSD), prior to July 8, 2003, and in excess of 70 percent disabling for the period beginning July 8, 2003. 2. Entitlement to a rating in excess of 40 percent for multiple fragment wounds, midline, upper lumbar spine, Muscle Group XX with retained foreign body, associated with reflex sympathetic dystrophy and lumbosacral facet joint osteoarthritis and herniated disc at L5-S1. 3. Entitlement to a rating in excess of 30 percent for residuals, multiple fragment wounds, posterior right (major) arm, above elbow, Muscle Group VI, with associated reflex sympathetic dystrophy and right elbow osteoarthritis. 4. Entitlement to a rating in excess of 10 percent for residuals of multiple fragment wounds, dorsal right wrist, Muscle Group VIII, with right wrist sprain. 5. Entitlement to a rating in excess of 10 percent for residuals of gunshot wound to the right thumb. 6. Entitlement to a rating in excess of 10 percent for multiple fragment wounds, left gluteal region, Muscle Group XVII. 7. Entitlement to a compensable rating for residuals of multiple fragment wounds, left lateral hemothorax area, Muscle Group XXI. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from August 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2000 rating decision by the Buffalo, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was previously remanded for additional development in July 2004 and March 2006. The Board notes that an August 2005 rating decision granted an increased 70 percent rating for PTSD, effective July 8, 2003, and granted entitlement to service connection for right elbow osteoarthritis, lumbosacral facet joint osteoarthritis and herniated disc at L5-S1, and right wrist sprain. It was noted that these additional service connection determinations were established as effective July 13, 1998, and that they were included with the existing service-connected disability evaluations for injuries to Muscle Groups VI, VII, and XX. The August 2005 rating decision also granted entitlement to service connection for left hip osteoarthritis assigned a 10 percent rating effective from July 13, 1998, and granted entitlement to service connection for right and left lower extremity radiculopathy as secondary to a service-connected disability with assigned 10 percent ratings effective from September 23, 2002. The Board notes the veteran has expressed no disagreement with these determinations and the issues have not been developed for appellate review. 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 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). A review of the record shows the veteran was notified of the VCAA duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in November 2002 and April 2006. The Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in July 2006. The Board finds, however, that as this case must be remanded for additional development a remedial notice should be provided as a result of the decision in Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). The VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. See 38 C.F.R. § 3.159 (2007). VA has a duty to assist the veteran which includes conducting a thorough and contemporaneous medical examination. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In this case, the March 2006 remand instructions, among other things, requested that appropriate action be taken to obtain outstanding VA and private treatment records to include records from St. Joseph's Hospital. In correspondence dated in April 2006 the AMC requested that the veteran complete and return a VA Form 21-4142, Authorization and Consent to Release Information, for St. Joseph's Hospital. VA records show that in August 2006 the veteran returned a signed VA Form 21-4142 for St. Joseph's Hospital, Elmira, New York. In the supplemental statement of the case issued in October 2007, the AMC/RO indicated that the release form for St. Joseph's Hospital returned by the veteran was incorrect. The Board notes there is no indication of any further attempt by the AMC/RO to notify the veteran of the problem with his signed consent form so that the problewm could be rectified, nor were there any other efforts nade to obtain these records nor of any specific determination by VA as to why further assistance was not required. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that a remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, additional development is required prior to appellate review. The Board also notes that statements from an August 2006 VA examiner raise questions as to whether the service-connected disability for the residuals of multiple fragment wounds, left lateral hemothorax area, Muscle Group XXI, has been mischaracterized. The examiner stated the veteran's injury was to the right chest. Therefore, appropriate action should be taken to clarify or correct this matter prior to appellate review. It is also significant to note that an August 2005 rating decision granted entitlement to service connection for right elbow osteoarthritis, lumbosacral facet joint osteoarthritis and herniated disc at L5-S1, and right wrist sprain. Service connection was established effective from July 13, 1998, and these disabilities were included with the existing service- connected disability evaluations for injuries to Muscle Groups VI, VII, and XX. The Court, however, has held that disabilities may be rated separately without violating the prohibition against pyramiding unless the disorder constitutes the same disability or symptom manifestations. See Evans v. Brown, 9 Vet. App. 273, 281 (1996). Therefore, separate ratings should be considered for any distinct, compensable disability manifestations as a result of right elbow osteoarthritis, lumbosacral facet joint osteoarthritis and herniated disc at L5-S1, or right wrist sprain. The Court has also held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Accordingly, the case is REMANDED for the following action: 1. The veteran should be provided any additional VCAA notice required as result of the decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). This includes notification (1) that to substantiate his claims he 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 her employment and daily life, (2) generally, of the diagnostic code criteria necessary for entitlement to a higher disability rating that would not be satisfied by demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on his employment and daily life, (3) that if an increase in disability is 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 (4) of examples of the types of medical and lay evidence that he may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation (such as 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). 2. The AMC/RO should contact the veteran and request that he provide them with a completed VA Form 21-4142 allowing VA to obtain pertinent medical records from St. Joseph Hospital. The RO should indicate to the veteran why his previously submitted form was not correct, in order that he provide the appropriate information in this release. After the veteran has signed the appropriate release, those records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the RO cannot obtain records identified by the veteran, a notation to that effect should be inserted in the file. The veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 3. Appropriate action should be taken to clarify or correct the issue of whether the veteran's service-connected disability for the residuals of multiple fragment wounds, Muscle Group XXI, involve the left or the right lateral hemothorax area. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. Separate ratings should be considered for any distinct, compensable disability manifestations as a result of right elbow osteoarthritis, lumbosacral facet joint osteoarthritis and herniated disc at L5-S1, or right wrist sprain. If any benefit sought remains denied, the veteran and his representative should be furnished a 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).