Citation Nr: 0813325 Decision Date: 04/23/08 Archive Date: 05/01/08 DOCKET NO. 06-06 725 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a right knee condition. 2. Entitlement to a rating in excess of 10 percent for a left knee condition. 3. Whether new and material evidence has been received to reopen a claim for service connection for residuals of a fracture of the left clavicle, claimed as a left shoulder condition. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD L. A. Rein, Associate Counsel INTRODUCTION The veteran had active duty for training (ACDUTRA) from August 1991 to December 1991, in the Army National Guard (ANG). The veteran also had subsequent service in the ANG. These matters come before the Board of Veterans' Appeals (Board) on appeal of a July 2005 rating decision in which the RO declined to reopen the claim for service connection for residuals of a fracture of the left clavicle, and continued 10 percent disability ratings for service-connected right and left knee conditions. The veteran filed a notice of disagreement (NOD) in August 2005, and the RO issued a statement of the case (SOC) in February 2006. The veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in February 2006. The Board notes that in June 2007 misfiled evidence was associated with the claims file, date stamped as having been received by the Board in August 2006. The evidence consists of August 2006 signed VA forms 21-4142 identifying and authorizing the RO to obtain additional VA and private medical records pertinent to the matters on appeal. This evidence also included the March 2006 VA form 8, certificate of appeal. For the reasons expressed below, the matters on appeal are being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran when further action, on her part, is required. REMAND Initially, the Board also notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The claims file reveals that additional RO action is needed to comply with the notification requirements of the VCAA. Pertinent to the veteran's petition to reopen the previously denied claim for service connection , a claimant must be notified of both what is needed to reopen the claim and what is needed to establish the underlying claim for service connection. See Kent v. Nicholson, 20 Vet. App. 1 (2006). In this case, the record contains an April 2005 notice letter that provided the veteran with the information necessary to substantiate the underlying claim for service connection, on a direct basis, and notice of the need to submit new and material evidence. However, generic notice of this type is not sufficient pursuant to the decision in Kent, supra. Rather, the record must show that the appellant was provided pertinent notice under 38 U.S.C.A. § 5103 which describes, "what evidence would be necessary to substantiate that element or elements required to establish service connection that were found insufficient in the previous denial." Kent, 20 Vet. App at 10. In this case, the Board notes that the April 2005 RO letter notified the veteran that she had been previously denied service connection for a left shoulder condition, and she was notified in a rating decision dated November 30, 1995. However, the Board notes that the last previous denial for service connection for a left shoulder condition was a May 1999 RO decision that reopened the claim, but denied it on the merits. Therefore, the RO provided the veteran incorrect notice of the date of her previous denial. Furthermore, there is no evidence that the RO has provided the veteran with specifically tailored notice of the information and evidence needed to establish service connection for a pre-existing condition or due to aggravation of a pre-existing disorder beyond its natural progression. In this regard, the Board notes that the veteran's July 1991 enlistment examination report and contemporaneous report of medical history reflects the appellant's prior history of a fracture of the left collar bone in 1988 due to a motor vehicle accident (MVA). The examiner's finding that the veteran had sustained such injury prior to service was based on a December 1988 statement from a private orthopedic physician that the veteran received treatment after a 1988 MVA for a fracture of the left clavicle. In the December 1988 statement, the private physician also stated that her fractures healed uneventfully and, based on her orthopedic injuries, he saw no contraindication of her joining the Armed Forces. At the time of her last visit in 1988, he essentially gave her a clean bill of health to return to full activity. The doctor summarized that from her orthopedic injuries, he felt that the veteran was fully capable of any activities. Subsequent service treatment records from August 1991 to October 1991 show that the veteran was evaluated for complaints of right shoulder pain, but there are no records of complaint, treatment, or diagnosis pertaining to the left shoulder. In a November 1995 rating action issued in December 1995, the RO denied service for residuals of a left shoulder injury as not well grounded because there was no evidence of a current chronic disability and because there was no evidence which linked any such disability to service. In a May 1997 decision, and subsequently thereafter, in the last final May 1999 decision, the RO reopened the claim for service connection, but denied it on the merits, on the basis that no residuals were shown on entrance, and there was no evidence that any residuals of a fracture of the left clavicle as having existed prior to enlistment, were aggravated/permanently worsened by service. Therefore, on remand, the RO should ensure that the veteran is properly notified of what evidence is needed to reopen her claim for service connection for residuals of fracture of left clavicle, claimed as a left shoulder condition, based on in-service incurrence, or aggravation of a preexisting disability, pursuant to Kent.. In the event that the claim for service connection is reopened, the RO's should also provide notice of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) (as regards the five elements of a claim for service connection- particularly, disability rating and effective date). The RO should provide notice of the current legal authority governing the burden of proof in claims involving aggravation of a pre-existing disability-specifically, VAOPGCPREC 3- 2003 (July 16, 2003) and Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (holding that to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must show, by clear and unmistakable evidence, that (1) the disease or injury existed prior to service and (2) that the disease or injury was not aggravated (beyond its natural progression) by service, and that the claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Additionally, as regards the claims for increase, the Board notes the relevance of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In Vazquez-Flores, the United States Court of Appeals for Veterans Claims (Court) held that, at a minimum, adequate VCAA notice requires that VA notify the claimant that, to substantiate such a claim: (1) 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; (2) 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), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) 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. The Ro has not furnished the veteran with such notice. The Board emphasizes that action by the RO is required to satisfy the notification provisions of the VCAA. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003). Hence, the RO should, through VCAA-compliant notice, give the veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal, explaining that she has a full one-year period for response. See 38 U.S.C.A. § 5103 (b)(1)(West 2002); but see also 38 U.S.C.A. § 5103(b)(3)) (West Supp. 2007) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should also invite the appellant to submit all pertinent evidence in her possession, and ensure that its notice to the veteran meets the requirements of the decisions in Kent, VAOPGCPREC 3- 2003 and Wagner, Dingess/Hartman, and Vasquez-Flores (cited to above), as appropriate. The RO should request specific authorization to enable it to obtain medical records from Dr. Barry Bohlen, (identified in an August 2006 letter). After providing the appropriate notice, the RO should obtain any additional evidence for which the veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2007). The Board also finds that specific additional development of the claims for increase is warranted. The veteran contends that her service-connected right and left knee disabilities are more severe than the currently assigned 10 percent ratings reflect. In this regard, she asserts that the severity of her bilateral knee conditions impacts upon her employability. In addition, in the August 2006 (noted above as previously misfiled), the veteran submitted, through her attorney, a VA form 21-4142 indicating that she received additional medical evaluation of her bilateral knee conditions at the VA Medical Center (VAMC) in Lincoln, Nebraska and in Grand Island, Nebraska. She furthered that her knees were getting progressively worse. The Board notes that the veteran last had a VA examination in July 2005. In view of the above, and to ensure that the record reflects the current severity of the veteran's right and left knee disabilities, the Board finds that a more contemporaneous examination, with findings responsive to the applicable rating criteria, is needed so that the evaluation of the claimed disabilities will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous"). The examination should include a review of the veteran's claims file and past clinical history, with particular attention to the severity of present symptomatology, as well as any significant pertinent medical history since her July 2005 examination. See also 38 C.F.R. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). Hence, the RO should arrange for the veteran to undergo VA orthopedic examination, by an appropriate physician, at a VA medical facility. The veteran is hereby advised that failure to report for the scheduled VA examination, without good cause, shall result in a denial of the claims for increase. See 38 C.F.R. § 3.655(b) (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the veteran does not report for the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the veteran to undergo further examination, the RO should obtain and associate with the claims file all outstanding VA records. The claims file reflects that the veteran was to have an MRI in July 2006 at the VAMC in Lincoln, Nebraska; however, there are no records from this VA facility associated with the claims file. The claims file currently includes outpatient treatment records from the VA Medical Center (VAMC) in San Francisco, California dated from April 1997 to April 1999 and from the Omaha and Grand Island VAMC from February 2003 to January 2006. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain all outstanding pertinent evaluation and treatment records from the Lincoln VAMC (from March 2004 to the present), and from the Omaha and Grand Island VAMC (from January 2006 to the present), following the current procedures prescribed in 38 C.F.R. § 3.159 (2007) as regards requests for records from Federal facilities. The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure that the VCAA has fully been complied with. Hence, in addition to the action requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. In adjudicating the claims for increase, the RO must document its specific consideration of whether "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) pursuant to Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007), is appropriate. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following: 1. The RO should obtain all outstanding records of evaluation and/or treatment for the veteran's right and left knee conditions, and for a left shoulder condition, from the Lincoln VAMC (from March 2004 to the present, to include a July 2006 MRI of the veteran's knees), and from the Omaha and Grand Island VAMCs (from January 2006 to the present). The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should furnish to the veteran and her attorney a VCAA-compliant notice letter requesting that the veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to any of the claims on appeal that is not currently of record. The RO should specifically request that she provide sufficient information and authorization to obtain all medical records from Dr. Barry Bohlen, (identified in an August 2006 letter). Pertinent to the petition to reopen, the letter must explain what type of evidence is needed to reopen the claim for service connection (in light of the basis(es) for the prior denial as well as what is needed to establish the underlying claim for service connection) The RO should specifically address the element(s) required to establish service connection that was/were found insufficient in the previous denial of the claim in the May 1999 rating decision, as required by Kent (cited to above). In addition, the notice letter should inform the appellant of the information and evidence needed to establish service connection for a pre- existing disorder beyond its natural progression, consistent with.VAOPGCPREC 3- 2003 and Wagner. The RO should request the veteran to furnish all pertinent evidence in her possession relating to each of the claims on appeal, and explain the type of evidence that is her ultimate responsibility to submit. The RO should also ensure that its letter meets the notice requirements of Dingess/Hartman and Vazquez-Flores (cited to above). The RO's letter should clearly explain to the veteran that she has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the veteran responds, the RO should assist the veteran in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran and his attorney that the records were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all available records and/or responses from each contacted entity are associated with the claims file, or, the time period for the veteran's response has expired, the RO should arrange for the veteran to undergo VA orthopedic examination, by an appropriate physician, to obtain medical information needed to assess the severity of the service- connected right and left knee conditions. The entire claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the veteran, and the examination report should reflect consideration of the veteran's documented medical history and assertions. All indicated tests and studies (to include X-rays of the knees) should be accomplished (with all findings made available to the requesting physician prior to the completion of his or her report) and all clinical findings should be reported in detail. The examiner should describe in detail the nature and degree of any impairment of each knee. The physician should conduct range of motion testing of each knee (with findings expressed in degrees)., and render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the doctor should indicate the point at which pain begins. He or she should indicate whether, and to what extent, the veteran experiences likely functional loss of either knee due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, he should express such functional loss in terms of additional degrees of limited motion. The examiner should specifically indicate the presence or absence of any lateral instability and/or recurrent subluxation in each knee. If instability is present, the examiner should, based on the examination results and the veteran's documented medical history and assertions, assess whether such instability is slight, moderate or severe. The examiner should also indicate whether the veteran experiences dislocation in either knee, and if so, whether such dislocations are accompanied by frequent episodes of locking, pain and/or effusion into the joint. Based on all clinical findings, the examiner should provide an assessment as to whether each knee disability is best characterized as slight, moderate, or marked. The physician should set forth all examination findings, together with the complete rationale for the comments and opinion expressed, in a printed (typewritten) report. 5. If the veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to her by the pertinent VA medical facility. 6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate each of the claims on appeal. If the veteran fails to report to the examination scheduled in connection with the claims for increase, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, the RO should consider each claim in light of all pertinent evidence and legal authority, to include consideration of whether "staged rating" of the right and left knee disabilities, pursuant to Hart (cited to above), is appropriate. If the claim for service connection for residuals of fracture of left clavicle is reopened, the RO's adjudication, on the merits, should include consideration of whether a left shoulder condition was a pre-existing condition, and whether a current left shoulder condition is due to in-service aggravation of a pre-existing disorder beyond its natural progression, pursuant to the governing legal authority cited to above. 8. If any benefit sought on appeal remains denied, the RO must furnish to the veteran and her attorney an appropriate SSOC that includes clear reasons and bases for all determinations, and afford her the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but she may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). These claims must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2007).