Citation Nr: 0813485 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-01 463 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for multiple joint polyarthritis (polyarthritis). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The veteran served on active duty from March 1988 to June 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision by the RO that granted service connection for polyarthritis, evaluated as 20 percent disabling. The veteran filed a timely appeal of this determination to the Board. Because the veteran's claim involves the propriety of the initial evaluation assigned, the Board has characterized this claim as indicated on the title page. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). In this regard the Board notes that because the assigned evaluation does not represent the maximum rating available for this disability, the veteran's claim challenging the initial evaluation for this condition remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). 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 After a careful review of the claims folder, the Board finds that the claim for increase must be remanded for further action. Here, the Board notes that, in statements submitted to VA in August 2004 and January 2006, the veteran set forth arguments indicating that her service-connected polyarthritis is worse than it was at the time of her most recent VA examination, which occurred in June 2004. Because the veteran has reported that her condition has worsened, the Board concludes that this matter must be remanded for the veteran to undergo a contemporaneous and thorough VA examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Prior to affording the veteran an updated VA examination, the veteran should be afforded an opportunity to submit any recent medical records or opinions pertinent to the claim that have not already been associated with the veteran's claims file. In this regard, the Board notes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be 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). Pursuant to the Veterans Claims Assistance Act, VA must obtain outstanding VA and private records. See 38 U.S.C.A. § 5103A(b)-(c) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(c) (2007). Finally, during the pendency of this appeal, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. The reasoning of this case also applies to claims for increase rating. In the present appeal, the veteran was provided with notice of what type of information and evidence was needed to substantiate her claim, but she was not provided with notice of the type of evidence necessary to establish a disability rating or effective date. Upon remand therefore, the veteran should be given proper notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that informs the veteran that a disability rating and an effective date for the award of benefits will be assigned if the claim is granted, and also includes an explanation as to the type of evidence that is needed to establish both a disability rating and an effective date. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should send the veteran and her representative a letter that contains a notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), that includes an explanation as to the information or evidence needed to establish a disability rating and effective date for the claims addressed in this remand, as outlined by the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO/AMC should take appropriate steps to contact the veteran and request that she identify all VA and non-VA health care providers, other than those already associated with the veteran's claims file, that have treated her since service for polyarthritis. The aid of the veteran in securing these records, to include providing necessary authorization(s), should be enlisted, as needed. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims file, and the veteran should be informed in writing. The veteran may submit medical records directly to VA. 3. After associating all outstanding records with the claims folder pursuant to the above-requested development, the RO/AMC should schedule the veteran for an appropriate VA examination in order to determine the current severity of the veteran's service-connected polyarthritis. The claims folder must be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. All necessary tests should be conducted. The physician is requested to offer an opinion as to whether the veteran's polyarthritis is productive of: (i) one or two exacerbations a year in a well- established diagnosis; (ii) definite impairment of health objectively supported by examination findings or incapacitating exacerbations occurring 3 or more times a year; (iii) symptoms that are less than criteria under (iv) below, but with weight loss and anaemia, that are productive of severe impairment of health or severely incapacitating exacerbations occurring 4 or more times a year or a lesser number over prolonged periods; or (iv) constitutional manifestations associated with active joint involvement that is totally incapacitating. The examiner should also conduct range of motion studies, expressed in degrees and in relation to normal range of motion, of any affected joints, and should also indicate the presence of either favorable or unfavorable ankylosis. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. The examiner must set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record, in a legible report. If the examiner is unable to provide the requested information with any degree of medical certainty, the examiner should clearly indicate that. 4. After completion of the foregoing, and after undertaking any further development deemed warranted by the record (and keeping in mind the dictates of the Veterans Claims Assistance Act of 2000), the RO/AMC should again adjudicate the veteran's claim in light of all the evidence or record. If any action remains adverse to the veteran, she and her representative must be furnished a supplemental statement of the case and be given an opportunity to submit written or other argument in response thereto. 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). 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). _________________________________________________ Alexandra P. Simpson 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).