Citation Nr: 0813500 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 06-06 569 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an evaluation greater than 10 percent for degenerative disc disease of the lumbosacral spine prior to May 10, 2005, currently evaluated as disabling. 2. Entitlement to an increased rating for degenerative disc disease of the lumbosacral spine as of May 10, 2005, currently evaluated as 40 percent disabling. ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The veteran had active military service from October 1982 to September 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal of a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction of this case was transferred to the RO in Seattle, Washington. 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 The veteran's lumbosacral spine disability is currently rated as 40 percent disabling as of May 10, 2005, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2007). The Board observes that the schedular criteria for rating spine disabilities have been amended during the pendency of this appeal. Effective September 26, 2003, the rating criteria for evaluating all spine disorders were amended. See 68 Fed. Reg. 51,454-51,458 (August 27, 2003); see also corrections at 69 Fed. Reg. 32, 449 (June 10, 2004). The Board notes the veteran's claim was filed effective October 1, 2002, upon his separation from active service. Pursuant to governing legal precedent, when a new statute is enacted or a new regulation is issued while a claim is pending before VA, VA must first determine whether the statute or regulation identifies the types of claims to which it applies. If the statute or regulation is silent, VA must determine whether applying the new provision to claims that were pending when it took effect would produce genuinely retroactive effects. If applying the new provision would produce such retroactive effects, VA ordinarily should not apply the new provision to the claim. If applying the new provision would not produce retroactive effects, VA ordinarily must apply the new provision. See VAOPGCPREC 7- 03, 69 Fed. Reg. 25,179 (November 19, 2003), citing to Landgraf v. USI Film Products, 511 U.S. 244 (1994). In increased rating cases such as this one, where the rating criteria is amended during the course of the appeal, the Board considers both the former and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also VAOPGCPREC 7-03; VAOPGCPREC 3-00, 65 Fed. Reg. 33,422 (April 10, 2000); 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114. As the veteran's claim was pending at the time of the regulatory amendments, he is entitled to the application of the criteria most favorable to his claim. See Diorio v. Nicholson, 20 Vet. App. 193, 197 (2006), citing Swann v. Brown, 5 Vet. App. 229, 232 (1993) (recognizing that where law is amended during pendency of appellant's claim, most favorable version applies), Rodriguez v. Nicholson, 19 Vet. App. 275, 287 (2005). However, as previously mentioned, application of the amended criteria may not be applied prior to the date of amendment. A review of the record reveals that the AOJ has only applied the new rating criteria applicable to lumbar spine disabilities. In light of the fact that the veteran has not been provided proper notice of these amendments and the fact that the AOJ has not applied the old criteria in its readjudications, the Board concludes that a remand is necessary to allow the AOJ an opportunity to provide notice as well as consider whether a higher disability rating is warranted under such criteria. As a final matter, the Board notes a recent decision of the Court of Appeals for Veterans Claims (Court) established specific requirements for VCAA notices sent with regard to increased rating claims. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). No such notice was provided to the veteran; thus, on remand, notice conforming to Vazquez-Flores should be sent to the veteran. Accordingly, the case is REMANDED for the following action: 1. The AOJ should review the claims file and ensure that all notification and development action required by the VCAA is completed. In particular, the AOJ should ensure that the notification requirements and development procedures contained in the Court's decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), are fully met. 2. The AOJ should obtain the veteran's VA treatment records for the period May 2006 through the present from the VA Puget Sound. 3. After completion of the above and any other development deemed necessary, review the expanded record and determine if the benefits sought can be granted. With respect to rating the veteran's service-connected lumbosacral spine disability, the AOJ should consider any appropriate separate ratings for all associated neurological manifestations. 4. Unless the benefits sought on appeal are granted, the veteran and his representative, if any, should be furnished a supplemental statement of the case that is fully compliant with the provisions of 38 C.F.R. § 19.29 (2007). In particular, the supplemental statement of the case should a) inform the veteran of what must be shown to establish entitlement to the benefit sought; b) provide a summary of all applicable laws and regulations, including old and new criteria for all diagnostic codes potentially applicable to lumbosacral spine disabilities, including intervertebral disc syndrome; and c) explain what the record does show, and why application of all of the law and regulations provided in the supplemental statement of the case has led to the determination being appealed. The veteran and his representative, if any, should then be afforded the opportunity to respond, after which the case should be returned to the Board, if in order, for further appellate review. 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). _________________________________________________ MILO H. HAWLEY 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).