Citation Nr: 0813942 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 07-03 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an increased evaluation for a shell fragment wound scar of the plantar surface of the right foot with a retained foreign body, healed fracture of the third right toe, and resultant plantar wart and callus, muscle group X, currently assigned a 20 percent disability evaluation. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jessica J. Wills, Associate Counsel INTRODUCTION The veteran served on active duty from April 1943 to January 1946. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the benefits sought on appeal. The veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. The Board also observes that the veteran's appeal had originally included the issues of entitlement to an increased evaluation for a shell fragment wound scar of the right forearm, a shell fragment wound scar of the right leg, and a retained foreign body in the right lung. However, in his December 2006 VA Form 9, the veteran stated that he was only appealing the issue of entitlement to an increased evaluation for a shell fragment wound scar of the right foot. As such, the veteran has not filed a substantive appeal for the other issues. See 38 C.F.R. § 20.202. Accordingly, those issues no longer remain in appellate status and no further consideration is required. 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 Reason for remand: To provide the veteran with proper notice and to afford him a VA examination. The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). During the pendency of the appeal, the Court issued a decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which held 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 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. Further, 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 that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. 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. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant 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. However, in this case, the Board notes that the veteran has not been adequately provided such notice, and thus, the case must also be remanded for proper notice pursuant to Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The Board also notes that the veteran was afforded a VA examination in June 2006 in connection with his claim for an increased evaluation. However, the veteran's representative submitted an informal hearing presentation in January 2008 in which he contended that the disability had worsened and noted that the examination was two years old. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Moreover, as pointed out by the veteran's representative, the June 2006 VA examiners did not indicate whether the claims file had been reviewed. Applicable regulations state that it is essential that, both in the examination and evaluation, each disability be viewed in relation to its history. See 38 C.F.R. § 4.1. In this regard, medical examinations generally should "take into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The United States Court of Appeals for Veterans Claims (Court) has held that the fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination which takes into account the records of prior medical treatment so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); see also 38 C.F.R. § 3.326 (2002); VAOPGCPREC 20-95 (July 14, 1995) (a VA examiner must review a claimant's prior medical records when such a review is necessary to ensure a fully informed examination or to provide an adequate basis for the examiner's findings and conclusions). Therefore, the Board finds that a more recent VA examination is in order in this case for the purpose of ascertaining the severity and manifestations of the veteran's service-connected shell fragment wound scar of the plantar surface of the right foot with a retained foreign body, healed fracture of the third right toe, and resultant plantar wart and callus. Therefore, in order to give the veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following actions: 1. The RO should send the veteran a notice letter in connection with his claims for an increased evaluation. The letter should inform him of the information and evidence that is necessary to substantiate the claim; (2) inform him about the information and evidence that VA will seek to provide; (3) inform him about the information and evidence he is expected to provide; and (4) ask him to provide any evidence in his possession that pertains to the claim. The letter should also include an explanation as to the information or evidence needed to establish a disability rating and an effective date, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In addition, the letter should tell the claimant to provide 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. 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 that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the RO should provide at least general notice of that requirement to the claimant. 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 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. The notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. The veteran should be afforded a VA examination to ascertain the severity and manifestations of his service- connected shell fragment wound scar of the plantar surface of the right foot with a retained foreign body, healed fracture of the third right toe, and resultant plantar wart and callus muscle group X. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the veteran's service- connected disability. The examiner should report all signs and symptoms necessary for rating the veteran's disability under the rating criteria. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2007), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant unless he is notified. _________________________________________________ KATHLEEN K. GALLAGHER 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).