Citation Nr: 0813156 Decision Date: 04/21/08 Archive Date: 05/01/08 DOCKET NO. 03-02 891A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Propriety of the reduction of the 60 percent rating assigned to service-connected degenerative disc disease of the lumbar spine. 2. Entitlement to an increased evaluation for service- connected degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD P. Olson, Associate Counsel INTRODUCTION The appellant served on active duty from March 1969 to December 1970. This matter is before the Board of Veterans' Appeals (Board) following a Board Remand in December 2007 following a Remand by the United States Court of Appeals for Veterans Claims regarding a Board decision rendered in October 2005. This matter was originally on appeal from rating decisions of the Lincoln, Nebraska, VA Regional Office (RO). 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 In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the veteran or other claimant, as a matter of law, the right to compliance with the Board's remand order. Moreover, the Court further held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Id. The issues on appeal were remanded by the Board in December 2007 for additional development. It is not apparent that any development was done. Thus, a remand is needed in light of this Stegall violation. 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. 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 Omaha. While this case is in remand status, the RO should obtain all records of current treatment for the veteran's lumbar spine. In reviewing the VA records in the file, the Board notes no records were obtained since March 2005. Accordingly, the case is REMANDED for the following action: 1. Pursuant to the Board's December 2007 Remand, the AOJ should consider all of the VA medical reports, dated prior to September 23, 2002, and make a determination as to which of the reports, if any, qualify as an informal claim for an increased rating for degenerative disc disease of the lumbosacral spine, to include any neurologic impairment. If any informal claim is identified, the applicable criteria should be considered for the relevant period. 2. The AOJ should schedule the appellant for a VA orthopedic examination to determine the degree of impairment due to degenerative disc disease of the lumbar spine. The claims file should be made available for review in conjunction with the examination. All necessary tests should be conducted. The AOJ should request that the examiner provide an opinion as to the degree of impairment due to the lumbar spine disability, to include providing range of motion findings and whether there is any ankylosis of the lumbar spine, as well as the existence and degree of any identified neurological impairment of the extremities due to degenerative disc disease of the lumbar spine. In addition, an opinion should be requested as to the impact of lumbar spine degenerative disc disease on the appellant's employability, to include whether there have been any incapacitating episodes requiring bed rest prescribed by a physician, and if so, the duration and frequency of any identified incapacitating episode. The opinion should contain the date or dates upon which any increase or decrease in the degree of impairment occurred. If a decrease in the degree of impairment is identified, the examiner should provide an opinion as to whether the improvement actually reflects an improvement in the appellant's ability to function under the ordinary conditions of life and work. A complete rationale should accompany all opinions provided. 3. All VA treatment records pertaining to treatment for lumbar spine from April 2005 to the present from the VA medical center in Omaha 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 (including all relevant former diagnostic codes for rating disabilities of the spine and the General Rating Formula for Diseases and injuries of the Spine) 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).