Citation Nr: 0813201 Decision Date: 04/22/08 Archive Date: 05/01/08 DOCKET NO. 06-07 309 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating in excess of 10 percent for service-connected peripheral neuropathy of the left lower extremity. REPRESENTATION Appellant represented by: Richard R. Whitmyer, Attorney WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD D. Vella Camilleri, Associate Counsel INTRODUCTION The veteran served on active duty from September 1968 to May 1973. He also had an unverified period of service in the Army Reserves from June 1973 to September 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which continued the 10 percent evaluation assigned for service-connected peripheral neuropathy of the left lower extremity. The RO in St. Petersburg, Florida, currently has jurisdiction of the case. The veteran was afforded a personal hearing before the undersigned Acting Veterans Law Judge in August 2007. A transcript of the hearing is of record. The veteran submitted additional evidence directly to the Board at the time of his hearing, which was accompanied by a waiver of RO consideration. The evidence will therefore be considered in this decision. 38 C.F.R. § 20.1304 (2007). In a March 2005 statement in support of claim, the veteran appears to be requesting consideration by the RO of a claim for service connection for peripheral neuropathy of the right lower extremity. As review of the claims folder does not reveal that the RO has addressed this issue, it is REFERRED to the RO for appropriate action. 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, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the veteran's claim so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007), are met. As an initial matter, review of the claims folder reveals that treatment records from the VA Outpatient Clinic (OPC) in Pasco, dated intermittently between May 2001 and March 2007, have been obtained and associated with the claims folder. It is unclear, however, whether these records comprise the veteran's complete VA records from this facility. On remand, the RO/AMC should obtain the veteran's treatment records from the Pasco OPC since January 2004. Review of the claims folder also reveals that the veteran receives VA treatment at the New Port Richey OPC. See e.g., November 2004 Pasco Administrative Note from Dr. S.B. Smith. No records from the OPC in New Port Richey have been associated with the claims folder, however, and it is unclear whether this facility is a different facility from the Pasco OPC. On remand, the RO/AMC should obtain the veteran's complete treatment records from the New Port Richey OPC. The veteran contends that he is entitled to a rating in excess of 10 percent for service-connected peripheral neuropathy of the left lower extremity because his disability has worsened. See August 2007 hearing transcript. He underwent a VA compensation and pension (C&P) peripheral nerves examination in February 2005, which is now over three years old. The Board notes that, at the time of the VA examination, the veteran's claims folder was not available for review. The VA examiner did indicate, however, conducting a review of the veteran's records on the Computerized Patient Record System (CPRS). At the time of the examination, the only records associated with the claims folder were VA treatment records. When a veteran claims that his condition is worse than when originally rated, and the available evidence is too old for an adequate evaluation of the veteran's current condition, VA's duty to assist includes providing a new examination. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). In light of the foregoing, fundamental fairness to the veteran warrants a more contemporaneous VA C&P examination for the purpose of ascertaining the current severity of his service- connected peripheral neuropathy of the left lower extremity. The veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case. The consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2007). Finally, during the pendency of the veteran's appeal, the Court of Appeals for Veterans' Claims issued a decision regarding the notice requirements associated with claims for increased ratings. More specifically, 38 U.S.C.A. § 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 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. Id. at 43-44. Prior to the issuance of the April 2005 rating decision that is the subject of this appeal, the veteran was advised that he needed to submit evidence showing that his service- connected peripheral neuropathy of the left lower extremity has increased in severity. See January 2005 letter. This notice, however, did not completely comply with the notice requirements as outlined in Vazquez-Flores v. Peake. Therefore, the RO/AMC should send appropriate notice that complies with this recent decision. Accordingly, the case is REMANDED for the following action: 1. Send the veteran notice that includes an explanation as to the information and evidence needed for his claim for increased rating in excess of 10 percent for service-connected peripheral neuropathy of the left lower extremity, as outlined in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). This notice must specifically advise the veteran (1) that he may submit evidence showing the effects of the worsening or increase in severity upon his "employment and daily life;" (2) 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 0% to as much as 100% (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; and (3) of the types of medical and lay evidence that he may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. 2. Obtain the veteran's treatment records from the Pasco OPC since January 2004. 3. Obtain the veteran's complete treatment records from the New Port Richey OPC. If this facility is the same as the Pasco OPC, that fact should be so noted in the record. 4. Schedule the veteran for a VA neurological examination for the purpose of determining the nature and severity of his service-connected peripheral neuropathy of the left lower extremity. The claims folders and a copy of this remand should be made available to and reviewed by the examiner in conjunction with the examination report. Any indicated studies, to include an electromyogram (EMG), should be performed. The examiner should identify any nerve(s) affected by the veteran's service- connected peripheral neuropathy of the left lower extremity. The examiner should discuss the extent, if any, of paralysis of the nerves involved. The examiner should provide a comprehensive report including complete rationales for all conclusions reached. 5. Thereafter, readjudicate the claim for an increased rating in excess of 10 percent for service-connected peripheral neuropathy of the left lower extremity. If the benefit sought on appeal is not granted, issue an updated supplemental statement of the case (SSOC) and give the veteran and his attorney representative an appropriate amount of time to respond to it. The appellant has the right to submit additional evidence and argument on the matter 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 or by the U.S. 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). _________________________________________________ J. Parker Acting 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).