Citation Nr: 0812145 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 07-22 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an increased rating for lumbar spondylosis with intermittent left radiculopathy, current rated as 60 percent disabling. 2. Entitlement to an increased rating for right patellofemoral syndrome secondary to lumbar spondylosis, currently rated as 10 percent disabling. 3. Entitlement to an increased rating for an osteoarthritic left talonavicular joint, currently rated as 10 percent disabling. 4. Entitlement to an increased (compensable) rating for left patellofemoral syndrome secondary to lumbar spondylosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The veteran served on active duty from November 1979 to October 1982. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a June 2006 rating decision by a Department of Veterans Affairs (hereinafter VA) Regional Office (hereinafter RO). In December 2007, a hearing was held before the Veterans Law Judge signing this document, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002). This appeal is REMANDED to the RO via the Appeals Management Center (AMC). REMAND In order to ensure due process to the veteran, the RO upon remand will be directed to conduct the necessary development to ensure compliance with a decision promulgated by the United States Court of Appeals for Veterans Claims after the RO's adjudication of the veteran's claim, Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In light of this necessary development and the veteran's testimony to the undersigned that her service-connected disabilities have become so severe as to preclude full time employment, the RO will be directed to provide the veteran with VA examinations to assess the current severity of her service connected disabilities. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. The RO should, pursuant to the holding in Vazquez-Flores v. Peake, provide the veteran with a notification letter that includes the following: a) Notice to the veteran that she must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of her service- connected disabilities and the effect that worsening has on her employment and daily life; b) Notice of the pertinent rating criteria codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5243, 5257, 5260, 5261, 5284 and any other applicable diagnostic code and of the fact that her ratings will be determined by applying the relevant Diagnostic Codes; and c) 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. 2. Based on her response, the RO must attempt to associate with the claims file all records desired by the veteran to be obtained which have not previously been procured from the identified treatment sources, to include Dr. A. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claims. The veteran must then be given an opportunity to respond. 3. The veteran must be afforded appropriate VA examinations to determine the current extent of the impairment resulting from her service-connected disorders. The claims files must be made available to and reviewed by the examiners in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted. Any further indicated special studies must be conducted and all clinical findings reported in detail. The examiners must record pertinent medical complaints, symptoms, and clinical findings. The examiners must state the range of motion of the affected joints, in degrees, noting the normal range of motion of each affected joint; determine whether there is weakened movement, excess fatigability, or incoordination attributable to the service-connected disorders expressed, if feasible, in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination; and express an opinion as to whether pain could significantly limit functional ability during flareups or during periods of repeated use, noting, if feasible, the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flareups. Additionally, the examiner must provide an opinion as to whether the veteran's complaints are consistent with the objective clinical findings, and whether her service connected disabilities limit her ability to work, or affect her ability to obtain and maintain substantially gainful employment. A complete rationale for all opinions must be provided. The report prepared must be typed. 4. The RO must notify the veteran that it is her responsibility to report for the examinations and to cooperate in the development of these claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2007). In the event that the veteran does not report for any of the aforementioned examinations, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Thereafter, the claims on appeal must be readjudicated by the RO. If this readjudication does not result in a complete grant of all benefits sought by the veteran, the veteran and her representative must be provided a supplemental statement of the case and an appropriate period of time must be allowed for response. Thereafter, the case must be returned to the Board. No action is required by the veteran until she receives further notice; however, she may present additional evidence or argument while the case is in remand status at the RO. 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. PARAKKAL 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).