Citation Nr: 0812008 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 04-10 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE 1. Entitlement to an increased rating greater than 30 percent for residuals of a comminuted fracture of the right femur. 2. Entitlement to an effective date earlier than March 1, 2002 for a 30 percent rating for residuals of a comminuted fracture of the right femur. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD John Francis, Associate Counsel INTRODUCTION The veteran served on active duty from October 1975 to June 1976. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2002 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied a compensable rating for residuals of a comminuted fracture of the right femur. In February 2004, the RO granted an increased rating of 30 percent, effective March 1, 2002, the date of claim. In a February 2004 substantive appeal, the veteran requested a hearing before the Board sitting at the RO, but he failed to appear for the hearing as scheduled in March 2008. As no good cause was shown, the request for a hearing is considered withdrawn. 38 C.F.R. § 20.702 (d) (2007). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. REMAND In the opinion of the Board, additional development is necessary. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA must also obtain Social Security Administration (SSA) decisions and records which have bearing on the veteran's claim. Waddell v. Brown, 5 Vet. App. 454 (1993); Clarkson v. Brown, 4 Vet. App. 565 (1993). In an undated Consent to Release Information to VA (VA form 21-4142), the veteran identified two examinations performed for the Social Security Administration: a functional capacity evaluation in January 2006 and an examination by a private internal medicine physician in July 2007. The veteran indicated that the examinations were related to a claim for Social Security disability benefits. In correspondence in January 2008, the RO requested records of the examinations and at least a negative reply. No responses have been received, and no records have been associated with the claims file. Furthermore, no general request has been made to SSA for all relevant examinations and adjudications. As these records may be relevant to evaluating the disability on appeal, a request for SSA records and a follow-up to the requests to the specified medical providers is necessary to decide the claim. In a February 2004 rating decision, the RO referred to testimony provided by the veteran at a personal hearing on January 12, 2004. Although the RO summarized some of the testimony including the veteran's lay statements regarding his symptoms and the impact of his disability on his daily activities, a transcript of the hearing has not been associated with the claims file and is necessary for the Board to consider all the relevant evidence including the veteran's lay statements. In a February 2004 substantive appeal, the veteran contended that he was entitled to an earlier effective date for a compensable rating for the residuals of a comminuted fracture of the right femur. The veteran's statement meets the criteria for a timely notice of disagreement. The RO has not yet issued a statement of the case regarding this issue. When a claimant files a timely notice of disagreement and there is no statement of the case issued, the Board should remand, rather than refer, the issue to the RO for the issuance of a statement of the case. The failure to issue a statement of the case is a procedural defect requiring remand. Manlincon v. West, 12 Vet. App. 238 (1999). For an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the claimant 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 the claimant's employment and daily life. 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 VA 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. Vazquez-Flores, 22 Vet. App. at 43-44. Here, the RO sent correspondence in May 2002 and August 2002 prior to the initial adjudication that did not satisfy all notice requirements. The notice requested information that would show that the veteran's disability had become more severe but did not provide general notice of the test criteria, request information on the impact of the disability on the veteran's employment and daily life, or provide examples of the types of evidence that may be submitted to substantiate the claim other than government or private medical records. Accordingly, the case is REMANDED for the following action: 1. Provide the veteran and his representative with notice that includes a general description of the applicable test criteria, requests information on the impact of the disability on the veteran's employment and daily life, and provides examples of the types of evidence that may be submitted to substantiate the claim other than government or private medical records. 2. Request from the Social Security Administration all records of medical examination and adjudication pertaining to the veteran. Associate any records received with the claims file. 3. If not included in the SSA records, initiate a follow-up request for records of a functional capacity evaluation performed in January 2006 by the Freeman Group and for records of an examination in July 2007 by Robert E. Jackson, M.D. Associate any records received with the claims file. 4. If available, associate a transcript of the veteran's January 2004 RO hearing with the claims file. 5. Provide the veteran and his representative with a statement of the case regarding an effective date earlier than March 1, 2002 for a compensable rating for the residuals of a comminuted fracture of the right femur and an opportunity to perfect an appeal. 6. Readjudicate the claim for an increased rating for the residuals of a commuted fracture of the right femur. If the decision remains adverse to the veteran, provide the veteran and his representative with a supplemental statement of the case and an opportunity to respond. Thereafter, return the case to the Board as appropriate. 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). _________________________________________________ S. S. TOTH 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).