Citation Nr: 0812565 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 04-25 340 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for osteoarthritis of the shoulders, hands, and fingers, to include as secondary to service-connected osteoarthritis of the left hip and left knee. 2. Entitlement to an initial evaluation in excess of 10 percent for osteoarthritis of the left hip and left knee for the period between March 17, 2003, to May 25, 2004. 3. Entitlement to an initial evaluation in excess of 10 percent for osteoarthritis of the left hip on or after May 25, 2004. 4. Entitlement to an initial evaluation in excess of 10 percent for osteoarthritis of the left knee on or after May 25, 2004. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Heneks, Associate Counsel INTRODUCTION The veteran served on active duty from September 1942 to March 1946. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. That decision granted service connection for osteoarthritis of the left hip and left knee and assigned a noncompensable evaluation effective from March 14, 2003. The August 2003 rating decision also denied service connection for osteoarthritis of the shoulders, hands, and fingers. The veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. Pursuant to an October 2007 motion and the Board's granting thereof in December 2007, this case has been advanced on the Board's docket under 38 C.F.R. § 20.900(c) (2007). 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 Unfortunately, this case must again be remanded. In this regard, the Board observes that in January 2008, the AMC sent the veteran a development letter in connection with the December 2007 Board remand which contained information pertaining to VA's duty to notify and also the Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) notice information. In February 2008, the January 2008 AMC letter was returned to the AMC as undeliverable. The United States Court of Appeals for Veterans Claims (Court) has held that the burden is upon VA to demonstrate that notice was sent to the claimant's last address of record. Hyson v. Brown, 5 Vet. App. 262 (1993). The Board observes that the veteran has provided several addresses to VA. Importantly, a July 2005 report of contact from the veteran's representative reflected that the veteran's last address of record is different from the address to which the AMC sent the development letter in January 2008. Moreover, the Board notes that it appears that the veteran's compensation and pension award payments are going to the same address as listed on the July 2005 report of contact. As there appears to be another address of record for the veteran, the Board finds that the AMC should make additional attempts to locate the veteran and fulfill the directives of the December 2007 Board remand. Further, the Board's December 2007 remand ordered, in part, examinations for the veteran's claims on appeal. However, there is no indication from the January 2008 development letter or other documentation in the claims file that VA examinations were ordered in connection with the veteran's appeal. The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As such, the AMC must ensure on remand that VA examinations are scheduled in connection with his claims. Further, the veteran still needs to be apprised of the regulation change effective October 10, 2006, for 38 C.F.R. § 3.310. The December 2007 Board remand is reproduced below. As noted previously in the December 2007 Board remand, the Board notes that the veteran was afforded a VA examination in May 2003 in connection with his claim for service connection for osteoarthritis of the shoulders, hands, and fingers. The May 2003 VA examiner diagnosed the veteran with arthritis of the bilateral shoulders and osteoarthritis of the hands and fingers. He also commented that the arthritis in the veteran's shoulders and hands was not related to his original injury in service. As such, the May 2003 VA examiner addressed the issue of whether the veteran's current osteoarthritis of the shoulders, hands, and fingers was directly related to his military service. However, the veteran has claimed that the disorder is secondary to his service-connected osteoarthritis of the left hip and left knee, and the May 2003 VA examiner did not address this contention. Therefore, the Board finds that a VA examination and clarifying medical opinion is necessary for the purpose of determining the nature and etiology of any and all osteoarthritis of the shoulders, hands, and fingers that may be present. Moreover, during the pendency of this appeal, the provisions of 38 C.F.R. § 3.310 were amended, effective from October 10, 2006. The new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995) (when aggravation of a veteran's nonservice-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service connected for that degree of aggravation), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. However, the veteran has not been notified of this amendment. Therefore, the Board finds it necessary to remand the veteran's claim so that the RO may address in the first instance the applicability of these revisions to the claim. In addition, the Board notes that the veteran was afforded a VA examination in May 2003 in connection with his claim for service connection for osteoarthritis of the left hip and left knee. Following the grant of service connection by the RO in an August 2003 rating decision, the veteran expressed his disagreement with the disability evaluation assigned his service-connected osteoarthritis of the left hip and left knee. The veteran subsequently submitted a statement in January 2005 in which he contended that those disabilities had worsened since the May 2003 VA examination. Generally, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, a current VA examination is in order to assess the current severity and manifestations of the veteran's service- connected osteoarthritis of the left hip and left knee. Moreover, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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. In the present appeal, the veteran was not provided with notice of the type of evidence necessary to establish an effective date. As the claim is being remanded for proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), an explanation as to the type of evidence that is needed to establish an effective date should also be included. Additionally, the Board notes that after the December 2007 Board remand, the Court issued a decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which held that for an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant 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 claimant's employment and daily life. 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 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. Vazquez-Flores, 22 Vet. App. 37 (2008). However, in this case, the Board notes that the veteran has not been adequately provided such notice, and thus, the case must also be remanded for proper notice pursuant to Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). Therefore, in order to give the veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED to for the following action: 1. The AMC must make additional attempts to locate the veteran. The Board observes that a July 2005 report of contact from the veteran's representative reflected that the veteran's last address of record is different from the address to which the AMC sent the development letter in January 2008. Moreover, the Board notes that it appears that the veteran's compensation and pension award payments are going to the same address as listed on the July 2005 report of contact. It should be clearly documented in the record that the copies of the development letter issued in connection with this remand and the requests for VA examinations in connection with this appeal were sent to the veteran's last known address of record. 2. The AMC should send the veteran a notice letter in connection with his claims for service connection for osteoarthritis of the shoulders, hands, and fingers and for a higher initial evaluation for his service-connected osteoarthritis of the left hip and left knee. The letter should (1) inform him of the information and evidence that is necessary to substantiate the claims; (2) inform him about the information and evidence that VA will seek to provide; (3) inform him about the information and evidence he is expected to provide; and (4) ask him to provide any evidence in his possession that pertains to the claims. The letter should also include an explanation as to the information or evidence needed to establish a disability rating and an effective date, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the letter should contain information that addresses Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In particular, the letter should advise the veteran that, to substantiate an increased rating claim, 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 his employment and daily life. Further, the veteran should be informed that if the Diagnostic Code under which he 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 that worsening has on his 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. Regarding the veteran's claim for an increased rating for osteoarthritis of the left hip, the veteran should be informed that the potentially applicable diagnostic codes are 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, and 5250- 5255. Regarding the veteran's claim for an increased rating for osteoarthritis of the left knee, the veteran should be informed that the potentially applicable diagnostic codes are 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, and 5256- 5263. Additionally, the veteran 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 is also outlined in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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. 3. The veteran should be afforded a VA examination to determine the nature and etiology of any osteoarthritis of the shoulders, hands, and fingers that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the May 2004 private medical opinion and medical literature. The examiner should comment on whether it is at least as likely as not that the veteran's current osteoarthritis of the shoulders, hands, and fingers was caused by or permanently aggravated by his service-connected osteoarthritis of the left hip and left knee or is otherwise related to his military service. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2007), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. The veteran should be afforded a VA examination to ascertain the severity and manifestations of his service- connected osteoarthritis of the left hip and left knee. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the veteran's service- connected left hip and left knee disability. The examiner should report all signs and symptoms necessary for rating the veteran's disability under the rating criteria. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2007), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. The RO should readjudicate the remaining issues on appeal. If the benefits sought are not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This SSOC should include the version of 38 C.F.R. § 3.310 that became effective on October 10, 2006. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until he is notified. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).