Citation Nr: 0813297 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 06-14 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to a rating in excess of 20 percent for Reiter's syndrome of the lumbar spine. 2. Entitlement to a rating in excess of 20 percent for Reiter's syndrome of the cervical spine. 3. Entitlement to a rating in excess of 10 percent for Reiter's syndrome of the right knee. 4. Entitlement to a rating in excess of 10 percent for Reiter's syndrome of the left knee. 5. Entitlement to a rating in excess of 10 percent for Reiter's syndrome of the right ankle. 6. Entitlement to a rating in excess of 10 percent for Reiter's syndrome of the left ankle. 7. Entitlement to a rating in excess of 10 percent for Reiter's syndrome of the right hip. 8. Entitlement to a rating in excess of 10 percent for Reiter's syndrome of the left hip. 9. Entitlement to a rating in excess of 10 percent for Reiter's syndrome of the right shoulder. 10. Entitlement to a rating in excess of 10 percent for Reiter's syndrome of the left shoulder. 11. Entitlement to a compensable rating for Reiter's syndrome of both elbows. 12. Entitlement to a compensable rating for Reiter's syndrome of both wrists. 13. Entitlement to a compensable rating for hammertoe of the left fifth digit. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G.A. Wasik, Counsel INTRODUCTION The veteran had active duty service from January 1980 to January 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified at a personal hearing before the Board in Washington, D.C. in July 2007. A copy of the transcript is of record. The veteran submitted a motion to correct the transcript, and the motion was granted. While the veteran has requested a copy of the corrected transcript, his requested changes have been made a part of the record and the hearing transcript is not redone to incorporate the changes. The veteran has submitted several documents which indicate an intent to claim entitlement to service connection for spina bifida. The veteran has also indicated that he desires to be service-connected for a right knee disability due to trauma. The issues are 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 on his part. REMAND The Board finds that a current VA examination is required in order to adjudicate the veteran's claims. Service connection is currently in effect for Reiter's syndrome for various joints and the veteran is receiving a combined 80 percent evaluation for the various disabilities. However, at the time of the most recent VA examination which was conducted in March 2004, the examiner found that there was no evidence of Reiter's syndrome at that time. Significantly, the examiner did not have access to the veteran's claims file. Subsequent to the March 2004 examination, the veteran has submitted statements as well as testimony before the undersigned which indicates that his service-connected disabilities have increased in severity since the last examination. The Board finds that a current VA examination is required in order to determine if the veteran currently experiences residuals of Reiter's syndrome and, if so, what those residuals are. While the Board is not required to direct a new examination simply because of the passage of time, VA's General Counsel has indicated that a new examination is appropriate when the record demonstrates or the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination. VAOPGCPREC 11-95 (April 7, 1995). See also 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c); Caffrey v. Brown, 6 Vet. App. 377 (1994). More current findings regarding the left fifth digit hammertoe would also aid the Board's appellate review. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (the Court) issued a decision in the case of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), in which the Court established significant new requirements with respect to the content of the duty-to- assist notice which must be provided to a veteran who is seeking a higher rating. With respect to increased rating claims, the Court found that, at a minimum, a 38 U.S.C. § 5103(a) notice requires that the Secretary notify the veteran that, to substantiate such a claim: (1) 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 veteran's employment and daily life; (2) if the Diagnostic Code (DC) 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 of that worsening 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; (3) the veteran must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant DCs, 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 (4) 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. Applying these principles to the present case, the Board finds that the veteran has not been provided with any notification letter which meet the requirements set forth in Vazquez-Flores v. Peake, supra. A remand is required to correct this deficiency. Accordingly, the case is REMANDED for the following action: 1. VCAA notice must be provided to the veteran which includes notification that the veteran must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the service- connected disabilities and the effect that worsening has on the veteran's employment and daily life; notification of the rating criteria used to evaluate the claims to include the rating criteria set out in Diagnostic Codes 5002, 5200, 5201, 5202, 5205, 5206, 5207, 5208, 5213, 5214, 5215, 5237, 5242, 5250, 5251, 5252, 5253, 5256, 5257, 5260, 5261, 5270, 5271, 5282, 5284, 5286, 5287, 5289, 5290, and 5292; notification 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 notification providing 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. 2. Schedule the appellant for appropriate VA medical examination(s) as are deemed necessary to readjudicate the claim, to accurately determine and delineate all the signs and symptoms of his Reiter's syndrome. All appropriate tests, including x-rays and range of motion studies, should be conducted and the examiner(s) should review the results of any testing prior to completion of any report. The veteran's claims folder should be made available to and pertinent documents therein reviewed by the examiner(s). Each examiner should state in the report whether said claims file review was conducted. The examiner(s) should be requested to specifically identify each specific organ or body system affected by the Reiter's syndrome disability and comment upon the nature, extent, and current degree of impairment manifested. The examiner(s) should describe all symptomatology due to treatment for the appellant's service-connected Reiter's syndrome disability. The rationale for all opinions expressed should also be provided. In particular, the examiner(s) must describe in detail the relative degree, severity or extent of any diagnosed condition that is found to be part and parcel of, or due to, the service- connected Reiter's syndrome. The examiner(s) should also express an opinion concerning whether there would be additional limits on functional ability during flare-ups of the Reiter's syndrome (if the appellant describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment during flare-ups. 3. Schedule the veteran for a VA examination to determine the current severity of the service-connected hammertoe of the left fifth digit. The veteran's claims folder should be made available to and pertinent documents therein reviewed by the examiner. The examination report should reflect that such a review was conducted. All appropriate diagnostic tests should be conducted. The examiner should note the existence and severity of any disability associated with the hammertoe of the left fifth digit. A complete rationale must be provided as to all findings and any opinions. 4. The claims should be readjudicated. If any benefit sought on appeal is not granted to the veteran's satisfaction, the veteran should be provided a supplemental statement of the case and be afforded the appropriate opportunity to respond. 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). _________________________________________________ BARBARA B. COPELAND 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).