Citation Nr: 0813806 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 03-23 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to special monthly compensation based on loss of use of a creative organ. 2. Entitlement to service connection for a bilateral knee disability, to include as secondary to service-connected degenerative joint disease of the lumbar spine. 3. Entitlement to service connection for bilateral pes planus, to include as secondary to service-connected degenerative joint disease of the lumbar spine. 4. Entitlement to service connection for osteoarthritis of the thoracic spine and fibromyalgia, to include as secondary to service-connected degenerative joint disease of the lumbar spine. 5. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus and PTSD. 6. Entitlement to service connection for bilateral hearing loss. 7. Entitlement to an increased disability rating for service- connected post traumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. 8. Entitlement to an increased disability rating for service- connected degenerative joint disease of the lumbar spine, currently evaluated as 20 percent disabling. REPRESENTATION Veteran represented by: John Stevens Berry, Esq. INTRODUCTION The veteran served on active duty in the United States Army from June 1967 to April 1969. This case comes before the Board of Veterans Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The remote procedural history of this case was set out in the Board's March 24, 2006 decision and will not be repeated. In its March 2004 decision the Board, inter alia, denied the veteran's claim of entitlement to special monthly compensation due to loss of use of a creative organ, as well as service connection for the five disabilities listed above. The veteran appealed to the United States Court of Appeals for Veterans Claims (the Court). In June 2007, representatives of the veteran and the Secretary of Veterans Affairs filed with the Court a Joint Motion for Partial remand (the Joint Motion). Pursuant to the Joint Motion, in an Order dated June 25, 2007 the Court vacated the Board's decision as to the first six issues listed above and remanded those issues for compliance with instructions contained in the Joint Motion. In March 2006, the Board remanded the veteran's claims of entitlement to increased ratings for a lumbar spine disability and PTSD so that a corrective notice could be sent under Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice was provided to the veteran, with a copy to his attorney, by the RO by letter dated April 14, 2006. All issues are REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, D.C. VA will notify the veteran if further action is required on his part. Issues not on appeal The Board's March 24, 2006 decision also granted an increased rating for service-connected diabetes mellitus and denied increased disability ratings for peripheral neuropathy of the left foot and right foot. In the Joint Motion, it was noted that the veteran withdrew his appeal as to those issues. The Court Order dismissed the appeal as to those three issues. Those matters have therefore been resolved. REMAND In substance, the Joint Motion, citing Mayfield v. Nicholson, 444 F. 3d 1238, 1333 (2006) [acknowledged in the Joint Motion to have been decided after the Board's March 2006 decision], indicated that the Board impermissibly relied upon various postdecisional communications to be veteran to establish adequate notice under Veterans Claims Assistance Act of 2000 (the VCAA), specifically 38 U.S.C. § 5103(a). If, as here, the record has a procedural defect with respect to the notice required under the VCAA, this may no longer be cured by the Board. The Board must remand the case to the agency of original jurisdiction because the record does not show that the veteran was provided adequate notice under the VCAA and the Board is without authority to do so. Under these circumstances, the Board has no alternative but to remand for the issuance of a letter which contains all of the information required by 38 U.S.C. § 5103 and its implementing regulation, 38 C.F.R. § 3.159. With respect to the two issues which were remanded by the Board in March 2006, as indicated above a Dingess letter was sent to the veteran in April 2006. However, in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Court determined that for an increased compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary of 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. Additionally, the claimant must be notified 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 noncompensable to as much as 100 percent (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. Accordingly, these two issues must also be remanded for appropriate VCAA notice. The case is REMANDED to the Veterans Benefits Administration (VBA) for the following action: 1. VBA must sent the veteran, with a copy to the veteran's attorney, a letter which fully provides notice under the VCAA including, with respect to the increased rating claims, appropriate notice under Vazquez-Flores v. Peake. 2. After completing any additional development which it deems to be necessary, VBA should then readjudicate the veteran's claims. If the claims are denied, in whole or in part, VBA should provide the veteran and his attorney with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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 or by the Court 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). _________________________________________________ Barry F. Bohan 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).