Citation Nr: 0813814 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 98-17 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE 1. Entitlement to an evaluation in excess of 10 percent for myositis of the right paravertebral, trapezius and rhomboid muscles, prior to December 7, 2004. 2. Entitlement to an evaluation in excess of 20 percent for myositis of the right paravertebral, trapezius and rhomboid muscles, from December 7, 2004. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.A. Kennerly, Associate Counsel INTRODUCTION The veteran served on active duty from February 1978 to June 1978, with additional periods of active and inactive duty for training, including in November 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1998 rating decision of the San Juan, Puerto Rico, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted an increased 10 percent evaluation for the veteran's service-connected myositis of the right paravertebral, trapezius and rhomboid muscles. The veteran appealed this decision. The veteran participated in a decision review officer hearing in November 1998. A transcript of that proceeding has been associated with the veteran's claims file. The Board previously remanded this claim in March 2001, October 2003 and January 2006 for additional development. In July 2007, the Board denied a rating in excess of 10 percent prior to September 23, 2002, and assigned an increased, 20 percent rating from September 23, 2002. On appeal, the United States Court of Appeals for Veterans Claims (Court) issued an October 2007 Order vacating, in part, the July 2007 Board decision and remanding the appeal for readjudication consistent with the parties' Joint Motion for Remand. As noted in the July 2007 Board decision, the veteran raised the issue of entitlement to a total disability rating based on individual unemployability (TDIU). This matter is REFERRED to the RO for appropriate action. 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 on his part. REMAND Pursuant to the October 2007 Order of the Court, the July 2007 Board decision was partially vacated, to the extent that it denied a rating in excess of 10 percent for myositis of the right paravertebral, trapezius and rhomboid muscles prior to December 7, 2004, and denied a rating in excess of 20 percent for the same condition since December 7, 2004. The portion of the Board decision that granted an increased rating of 20 percent, effective December 7, 2004, is not the subject of the partial motion for remand. During the pendency of the veteran's appeal, the Court held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) that a veteran must be provided with notice of how VA determines disability ratings and effective dates. The Court also held in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), that additional notice requirements must be complied with prior to the adjudication of a veteran's claim for increased compensation. The notice letter provided to the veteran in January 2002 does not comply with the holdings in Dingess/Hartman and Vazquez-Flores. Thus, the claims must be remanded to provide the veteran a new notice letter consistent with these holdings. In a letter dated in March 2008, the veteran's representative informed VA that the veteran continues to receive medical treatment from Evelyn Rivera-Ocasio, M.D., for his upper back, neck and shoulder pain. The representative enclosed a recent magnetic resonance imaging (MRI) report with the March 2008 letter. It appears that there are outstanding medical records from Dr. Rivera-Ocasio that must be obtained. Additionally, the veteran's representative did not waive agency of original jurisdiction consideration of the medical evidence, the aforementioned MRI, included with her letter to the Board. Although the veteran had an examination for his disability in December 2004, the duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior medical treatment. See Green v. Derwinski, 1 Vet. App. 121 (1991). Due to the veteran's allegations that his condition has worsened since the December 2004 examination, he must be afforded a new VA examination to determine his current level of disability. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should provide the veteran with notification of VA's duties to notify and assist consistent with the holdings in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Specifically, the veteran must be informed of the following: A) The veteran should be provided notice of how VA determines disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). B) The veteran must be notified that, to substantiate a claim, he must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life; C) If the Diagnostic Codes under which his disability is rated contain the criteria necessary for entitlement to a higher disability rating that would not be satisfied by the veteran demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the veteran's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of this requirement to the veteran. In this case, the veteran should be provided with notice for 38 C.F.R. § 4.73, Diagnostic Codes 5322, 5323, 5301 and 5302. D) The veteran 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; E) The notice must also provide examples of the types of medical and lay evidence that the veteran may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. The RO/AMC should obtain any outstanding VA and private medical treatment records, to include records from Dr. Rivera-Ocasio. If records are unavailable, this should be noted in the claims file. 3. Following the receipt of any additional evidence, the veteran should be scheduled for an appropriate VA examination to determine the current severity of his disability (myositis of the right paravertebral, trapezius and rhomboid muscles). The examiner must review pertinent documents in the veteran's claims file in conjunction with the examination and note this has been accomplished in the examination report. 4. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims should be readjudicated. If the claims remain denied, a supplemental statement of the case should be provided to the veteran and his representative. After they have had an adequate opportunity to respond, the issues should be returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2002 & Supp. 2007). _________________________________________________ BARBARA B. COPELAND 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).