Citation Nr: 0813465 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-02 055 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for post-operative residuals of a right L5-S1 partial hemilaminectomy and diskectomy, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The veteran served on active duty from May 1979 to July 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The file was forwarded to the Board by the Columbia, South Carolina RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND The Veterans Claims Assistance Act of 2000 (VCAA) sets forth the obligation on the part of VA to notify a claimant of the information and evidence needed to substantiate and complete a claim, to include notice of the evidence to be provided by the claimant, and that which VA will attempt to obtain on behalf of the claimant. Furthermore, VA is required to inform the claimant of the need to submit all pertinent evidence in his possession. Since the January 2004 rating decision the United States Court of Appeals for Veterans Claims (Court) issued the decision of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), pursuant to which there exists a heightened notice obligation under the VCAA to a claimant attempting to establish entitlement to an increased rating for a service-connected disability. The Vazquez decision requires that VA notify the claimant that to substantiate a claim for increased disability rating: (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 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; (3) 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 percent to as much as 100 percent (depending on the disability involved); and (4) in regard to 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. In this case, the RO has issued to the veteran a November 2003 VCAA letter, and July 2004 statement of the case which set forth in more detail the applicable rating criteria for evaluating his service-connected lumbosacral spine disorder. Vazquez held that adjudication of an increased rating claim may still proceed on the merits where lack of the requisite information was nonprejudicial. Here, however, the statement of the case provided actual and constructive notice of the pertinent rating criteria, though it did not precede issuance of the January 2004 rating decision on appeal. Notably, since notice was provided the claim was not been readjudicated through a supplemental statement of the case or subsequent decision, which otherwise would have cured the defect in timing of the notice. See Mayfield v. Nicholson, 19 Vet. App. 103, 129 (2005). Thus, remand for a comprehensive notice letter is required. As the veteran last underwent VA orthopedic examination in connection with this claim in December 2003, more than four years ago, another such examination is warranted to provide a contemporaneous depiction of service-connected disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability ...the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination.") In addition, the veteran in his substantive appeal indicated that he had previously received private chiropractic treatment for his low back disorder. He did not, however, identify the name of the chiropractor who provided that care. Thus, he should be given the opportunity to identify more extensive information regarding such prior treatment. See 38 C.F.R. § 3.159(c)(2) (VA will undertake reasonable efforts to obtain relevant records in the custody of a Federal department or agency). Accordingly, the case is REMANDED for the following action: 1. The RO should send the veteran a corrective VCAA notice letter under 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007) and 38 C.F.R. § 3.159(b) (2007), that includes an explanation as to the specific information or evidence needed to establish an increased disability rating as outlined in the Court's decision in Vazquez-Flores. The notice set forth therein must advise the veteran that he may submit or request that VA obtain medical or lay evidence demonstrating a worsening or increase in severity upon employment and daily life. He must be advised of the additional pertinent rating criteria under the applicable diagnostic codes for his lumbosacral spine disability (i.e., beyond the effect upon employment and daily life) -- to include 38 C.F.R. § 4.71a, Diagnostic Codes 5242 and 5243, and 38 C.F.R. § 4.124a, Diagnostic Code 8520. Also, inform the veteran that any increase in disability that is warranted will be determined based on diagnostic codes providing for a range in severity (from 0 percent to as much as 100 percent). Notify him of the types of medical and lay evidence he may submit that are relevant to his claim for increased compensation. 2. The RO should also contact the veteran and request that he complete and return a medical authorization form identifying all pertinent treatment records for his back disorder from any health care provider, to include William Johnson, D.C. The RO must then request treatment records from these identified sources in accordance with the information he provides. If the request for records from any indicated source is unsuccessful, make all reasonable follow-up attempts. If it is determined these records cannot be obtained, notify the veteran of this in accordance with 38 U.S.C.A. § 5103A(b) and 38 C.F.R. § 3.159(e). 3. The RO should then make the appropriate arrangements to schedule the veteran for an examination for his post- operative residuals of a right L5-S1 partial hemilaminectomy and diskectomy. The claims folder must be made available for the examiner to review. In accordance with the latest AMIE worksheets for rating lumbar disorders, to include intervertebral disc syndrome, the examiner is to provide a detailed review of the veteran's pertinent medical history, current complaints, and the nature and extent of his service-connected disability. A complete rationale for any opinions expressed must be provides. The examiner must offer specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the service-connected lumbosacral spine disability. If pain on motion is observed, the examiner must indicate the point at which pain begins. In addition, after considering the veteran's documented medical history and assertions, the examining physician must indicate whether, and to what extent, the veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner must further address whether there is any service-connected neurological impairment caused or aggravated by the lumbosacral disorder, particularly involving any radiculopathy to the right or left lower extremities. 4. The RO should review the medical examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. The veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2007). In the event that the veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 6. Thereafter, the RO should readjudicate the claim of entitlement to an increased rating for post-operative residuals of right L5-S1 partial hemilaminectomy and diskectomy. If the benefit is not granted, the veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 7. While this case is on remand, the RO should ensure that all necessary development or assistance under the Veterans Claims Assistance Act of 2000 has been provided, to include an explanation as to the information or evidence needed to establish an effective date of any award of increased compensation as outlined in Dingess v. Nicholson, 19 Vet. App. 473 (2006). See also 38 U.S.C.A. §§ 5100, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). The veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ DEREK R. BROWN 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).