Citation Nr: 0812725 Decision Date: 04/17/08 Archive Date: 05/01/08 DOCKET NO. 05-39 183 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a bilateral leg disability. 3. Entitlement to an evaluation in excess of 30 percent for C1-2 odontoid fracture, status post spinal fusion with traumatic arthralgia. 4. Entitlement to an initial evaluation in excess of 20 percent for left ulnar neuropathy. 5. Entitlement to an evaluation in excess of 10 percent for residuals of right pneumothorax. 6. Entitlement to a compensable evaluation for headaches. 7. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney ATTORNEY FOR THE BOARD P. Olson, Associate Counsel INTRODUCTION The veteran had active military service from December 1980 to September 1986. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. 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 This case must be remanded for additional evidentiary development. The appellant is currently receiving disability benefits from the Social Security Administration (SSA). In September 2007, the veteran's attorney submitted an SSA decision dated in July 2007. The Board notes that the RO's attempts in January 2006, January 2007, and February 2007 to obtain SSA records were unsuccessful. However, VA is required to obtain evidence from the Social Security Administration, including decisions by the administrative law judge, and give the evidence appropriate consideration and weight. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996). Thus, it is the Board's opinion that a final effort should be made to secure these records. With respect to the issues of entitlement to increased evaluations for C1-2 odontoid fracture, status post spinal fusion with traumatic arthralgia, left ulnar neuropathy, residuals of right pneumothorax, and headaches, the most recent VA examinations were conducted in June 2004. Although these examinations are not necessarily stale, because there may have been a significant change in the veteran's condition, new examinations are in order. In addition, the Board must address the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2005)), which imposes obligations on VA in terms of its duties to notify and assist claimants. A review of the claims file reveals that the veteran has not been properly notified of the provisions of the VCAA with respect to the increased rating claims. With respect to increased rating claims, in order to satisfy the duty to notify provisions for an increased-compensation claim, VA must 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. 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 of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement to the claimant. 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. 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 v. Peake, 22 Vet. App. 37 (2008). Finally, the veteran receives routine treatment at the VA Medical Center in Kansas City. While this case is in remand status, the RO should obtain all records of current treatment. In reviewing the VA records in the file, the Board notes no records were obtained since December 2005. Accordingly, the case is REMANDED for the following action: 1. The veteran's medical and adjudication records should be requested from the Social Security Administration. All efforts to obtain these records should be fully documented, and the Social Security Administration should provide a negative response if records are not available. 2. The veteran should be afforded the appropriate VA examination to determine the severity of his service-connected cervical spine disability (C1-2 odontoid fracture), left ulnar neuropathy, headaches, and to specifically identify any and all residuals of right pneumothorax and determine their severity. The claims file must be made available to and reviewed by the examiner in conjunction with the examination, and the examination report should reflect that such a review was made. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. Application of 38 C.F.R. § 4.40 regarding functional loss due to pain and 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination or pain on movement of a joint should be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Based on examination findings and other evidence contained in the claims file, the examiner must offer an opinion as to whether it is at least as likely as not that the veteran is unable to obtain or maintain substantially gainful employment solely as a result of the combination of his service-connected disabilities, which are (1) C1-2 odontoid fracture, status post spinal fusion with traumatic arthralgia, (2) left ulnar neuropathy, (3) residuals of traumatic right pneumothorax, (4) costochondritits of sternum and bilateral ribs, (5) right iliac crest scar and bone loss/bone graft donor site, (6) residuals of basilar skull fracture, (7) residuals of left med-shaft humerus fracture with traumatic arthralgia, and (8) headaches. In doing so, the examiner also must consider the veteran's education, experience, and occupational background in determining whether he is unable to secure or maintain gainful employment in light of his service-connected disabilities (standing alone). The examination report must include a complete rationale for all opinions and conclusions expressed. 3. All VA treatment records pertaining to treatment from January 2006 to the present from the VA medical center in Kansas City should be obtained. All necessary follow-up efforts must be made to obtain the records, until it is clear from the responses received that further requests would be futile. 4. Compliance with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), should be ensured, including notifying the veteran that, to substantiate a claim, the veteran 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. The veteran must also be provided general notice of the requirements under the diagnostic codes under which the veteran's service- connected disabilities are rated (General Rating Formula for Diseases and injuries of the Spine, General Rating Formula for Restrictive Lung Disease, and Diagnostic Codes 6843, 8100, and 8516) as well as 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. 5. After the above development has been completed, the case should be reviewed on the basis of the additional evidence. If the benefit sought is not granted in full, the veteran 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. No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 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). _________________________________________________ MILO H. HAWLEY 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).