Citation Nr: 0811585 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 03-23 915 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a higher initial rating for service-connected degenerative joint disease of the lumbar spine, currently evaluated as 20 percent disabling. REPRESENTATION Veteran represented by: V. A. Girard-Brady, Attorney WITNESSES AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD J. W. Kim, Associate Counsel INTRODUCTION The veteran served on active duty from August 1966 to August 1968. This case comes to the Board of Veterans' Appeals (Board) on appeal from a September 2002 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, that granted service connection and a 20 percent rating for degenerative joint disease of the lumbar spine. The veteran appealed for a higher rating. A videoconference hearing was held before the undersigned Veterans Law Judge in May 2006. In August 2006, the Board denied the veteran's claim. The veteran appealed to the United States Court of Appeals for Veterans Claims (Court), which vacated and remanded the case for further development by order dated October 2007. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify you if further action is required on your part. REMAND After review, the Board observes that further development is required prior to adjudicating the veteran's claim. In an August 2004 letter, Dr. W. stated that the veteran is permanently and totally disabled due to his lumbar spine disability. In this regard, a February 2004 VA examination report, which is the most recent of record, contains no opinion on the impact of the veteran's service-connected disability degenerative joint disease of the lumbar spine on his ability to work. Furthermore, that examination is now over four years old. Thus, to determine the current severity of the veteran's service-connected lumbar spine disability, including its interference with employability, the veteran should be afforded a new VA examination. Additionally, there is a question as to the extent of the veteran's lumbar spine disability that is attributable to service, as opposed to a post-service work-related injury. In this regard, he has been diagnosed with degenerative joint disease, degenerative disc disease, a herniated disc, and sciatica. Thus, in conducting the above VA examination, the examiner should provide all diagnoses relevant to the lumbar spine, provide an opinion on whether each diagnosed disorder is related to service, and provide an opinion on the extent of the veteran's current disability that is attributable to the disorder or disorders found to be related to service. In addition, the examiner should comment on any interference with employability due to the disorder or disorders found to be related to service. In this regard, pursuant to 38 C.F.R. § 4.14, the use of manifestations not resulting from service- connected disability in evaluating the level of disability of a service-connected condition is to be avoided. 38 C.F.R. § 4.14 (2007). The Board also observes that further development is required under the Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and implemented at 38 C.F.R. § 3.159 (2007). During the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2007), 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 effective date of an award. In this case, the veteran was not provided with notice of the type of evidence needed to establish a disability rating and an effective date. Thus, corrective notice can be provided on remand. The notice should also advise the veteran that, to substantiate a claim for a higher rating, he 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 his employment and daily life. The notice must also provide examples of the types of medical and lay evidence that he 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). Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Send the veteran and his representative a corrective VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) that includes an explanation of the information and evidence needed to establish a disability rating and an effective date. See Dingess/Hartman, 19 Vet. App. 473. The notice should also advise the veteran that, to substantiate a claim for a higher rating, he 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 his employment and daily life. The notice must also provide examples of the types of medical and lay evidence that he 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. 2. Obtain and associate with the claims file any pertinent records adequately identified by the veteran in response to the above notice. 3. Schedule the veteran for a VA spine examination to determine the current severity of his service-connected degenerative joint disease of the lumbar spine. The claims file must be reviewed by the examiner in conjunction with the appeal. All indicated tests should be performed and all findings should be reported in detail. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, including the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should provide all diagnoses relevant to the veteran's lumbar spine disability, provide an opinion on whether each diagnosed disorder is related to service, and provide an opinion on the extent of the veteran's current disability that is attributable to the service- related disorder(s). The examiner should also comment on any interference with employability due to the service-related disorder(s). The examiner should set forth the complete rationale for all opinions expressed and conclusions reached. 4. After the above development has been completed to the extent possible, readjudicate the claim. If any benefit sought on appeal remains denied, the veteran and his representative should be issued a supplemental statement of the case and given an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran need take no action unless otherwise notified. The veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ K. A. BANFIELD 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).