Citation Nr: 0812716 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 05-24 405 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for a right knee disability. 2. Entitlement to a disability rating in excess of 10 percent for a left knee disability. 3. Entitlement to a disability rating in excess of 10 percent for kidney stones. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD David Gratz, Associate Counsel INTRODUCTION The veteran served on active duty from November 1986 to March 1987, and from August 1988 to August 1992. This matter came before the Board of Veterans' Appeals (Board) from a March 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which continued evaluations of 10 percent each for the veteran's service-connected right knee disability, left knee disability, and kidney stones. The appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND This case must be remanded to comply with VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the veteran that, to substantiate a 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 the claimant's employment and daily life. Further, if the Diagnostic Code under which the veteran 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 the veteran'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 veteran. 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. Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). Since the veteran did not receive proper notice under § 5103(a) prior to the adjudication of his claim, this case is remanded so that the veteran may be so notified. The duty to assist includes obtaining VA and private medical records and providing a VA medical examination or a medical opinion when necessary for an adequate determination. Duenas v. Principi, 18 Vet. App. 512 (2004). When the available evidence is too old to adequately evaluate the current state of the veteran's condition, the VA must provide a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992). Here, the veteran's claims file contains VA treatment records from the VA Medical Center (VAMC) up to February 2004. More than four years have passed since the veteran's last VA examination for his knees and kidney stones in February 2004. A new VA examination will show the veteran's current level of disability. The Board remands this matter to afford the veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of his right knee, left knee, and kidney stone disorders. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43,186 (1995). Accordingly, the case is REMANDED for the following action: 1. Provide the veteran with all notification and development necessary to comply with 38 U.S.C.A. §§ 5103(a) and 5103A (West 2002 & Supp. 2007) and 38 C.F.R. § 3.159 (2007). Specifically, the veteran should be notified that, to substantiate an increasing claim, 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 the claimant's employment and daily life. Further, if the Diagnostic Code under which the veteran 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 the veteran'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 veteran. 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. Vazquez-Flores, supra. 2. Obtain the veteran's VA treatment records from February 2004 to the present. 3. After completion of the above, the veteran should be scheduled for an orthopedic examination, by an appropriate specialist, to evaluate his service- connected right knee and left knee disabilities, pursuant to Diagnostic Codes 5257. The claims file should be made available to, and be reviewed by the examiner in connection with the examination, and the report should so indicate. All indicated tests and studies should be undertaken. When evaluating disabilities of the knees, the examiner should determine if there is any instability or arthritis, and provide the range of motion for each knee. The rationale for any opinions and all clinical findings should be given in detail. 4. The veteran should be scheduled for a VA examination, by an appropriate specialist, to determine the nature and severity of his service-connected kidney stones, pursuant to Diagnostic Code 7509, both currently and throughout the appeal period, as reflected by the available medical evidence. It is imperative that the claims file be made available to the examiner for review in connection with the examination. All indicated tests and studies should be performed and all clinical and special test findings should be reported in detail to allow for evaluation under applicable VA rating criteria. 5. After completion of the above, the AOJ should readjudicate the appellant's claims for entitlement to increased ratings for his service-connected right knee, left knee, and kidney stone disabilities. If any determination remains unfavorable to the appellant, he and his representative should be provided with a supplemental statement of the case and be afforded an opportunity to respond before the case is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The purposes of this remand are to comply with due process of law and to further develop the veteran's claim. No action by the veteran is required until he receives further notice; however, the veteran is advised that failure to cooperate by reporting for examination may result in the denial of the claim. 38 C.F.R. § 3.655 (2007). The Board intimates no opinion, either legal or factual, as to the ultimate disposition warranted in this case, pending completion of the above. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ A. BRYANT 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).