Citation Nr: 0813945 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 02-06 136 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a low back disorder. 2. Entitlement to service connection for a left shoulder disorder. 3. Entitlement to a temporary total disability evaluation under 38 C.F.R. § 4.30 for surgery of the left shoulder. 4. Entitlement to a disability evaluation in excess of 60 percent for service-connected cervical strain, C6 radiculopathy, left, status post anterior cervical discectomy and fusion C6-C7. 5. Entitlement to a disability evaluation in excess of 30 percent for service-connected major depressive disorder. 6. Entitlement to a compensable disability evaluation for erectile dysfunction. 7. Entitlement to a compensable disability evaluation for internal derangement of the right knee. 8. Entitlement to an effective date earlier than August 16, 2000, for the grant of service connection for internal derangement of the left knee, associated with internal derangement of the right knee. 9. Entitlement to an effective date earlier than April 2, 2004, for the grant of service connection for major depressive disorder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The veteran served on active duty from August 1976 to April 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The veteran previously testified at a Travel Board hearing before a Veterans Law Judge in August 2003. The Veterans Law Judge that conducted the hearing is no longer with the Board. The veteran was apprised of this fact and offered an opportunity for a new hearing in October 2007. See 38 C.F.R. § 20.707 (2007). The veteran responded that same month that he did not desire to have a new hearing. The Board previously adjudicated the veteran's claim for an evaluation in excess of 40 percent for a cervical spine disability and a compensable evaluation for a right knee disability in March 2005. The Board increased the veteran's cervical spine disability evaluation to 60 percent and denied a compensable disability evaluation for the right knee. The issue of an earlier effective date for service connection for internal derangement of the left knee, associated with internal derangement of the right knee, was remanded. The veteran appealed the Board's decision, regarding the two increased evaluation issues, to the United States Court of Appeals for Veterans Claims (Court). The Court issued a memorandum decision to vacate the Board's decision and remand the case in June 2007. The Court held that the Board hearing officer (Veterans Law Judge) failed to fulfill his regulatory obligation to the veteran to suggest the submission of additional evidence that would be helpful to the claim. The Board wrote to the veteran in October 2007. The veteran was advised that the case was returned to the Board by the Court. He was further advised that he had 90 days to submit additional evidence or argument in support of his claim. The veteran responded that he had no additional evidence to submit in support of his claim. The veteran had concurrent development of other issues at the RO while his appeal was pending at the Court. Specifically, he was granted service connection for erectile dysfunction and major depressive disorder in April 2005. The veteran expressed disagreement with the disability evaluations assigned for both disabilities and the effective date for service connection in May 2005. He was issued a statement of the case (SOC) that addressed the effective date issue in August 2007. The veteran perfected his appeal that same month. However, he limited his appeal to an earlier effective date for service connection for major depressive disorder. He specifically declared that he was withdrawing the issue of an earlier effective date for service connection for erectile dysfunction. Thus that issue is withdrawn from appellate consideration. See 38 C.F.R. §§ 20.200, 20.202 (2007). Finally, the veteran's representative raised the issue of the veteran's entitlement to a total disability evaluation based on individual unemployability (TDIU) at the time of the submission in February 2008. This issue has not been developed or certified on appeal. It is referred to the RO for such further action as may be necessary. The issues of new and material evidence for service connection for a low back disorder, service connection for a left shoulder disorder, entitlement to a temporary total disability evaluation under 38 C.F.R. § 4.30, entitlement to an evaluation in excess of 30 percent for major depressive disorder, and entitlement to a compensable disability evaluation for internal derangement of the right knee are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In February 2008, the Board received notice from the veteran's representative that a withdrawal of the appeal for a disability evaluation in excess of 60 percent for cervical strain, C6 radiculopathy, left, status post anterior cervical discectomy and fusion of C6-C7 and a compensable disability evaluation for erectile dysfunction was requested. 2. The veteran was denied entitlement to service connection for a left knee disability in July 1995. He failed to perfect an appeal and the decision became final. 3. The veteran's request to reopen his claim for service connection for a left knee disability was received on August 16, 2000. 4. The veteran's initial claim for service connection for a psychiatric disorder was received on April 2, 2004. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the substantive appeal by the veteran have been met with respect to the issues of entitlement to a disability evaluation in excess of 60 percent for cervical strain, C6 radiculopathy, left, status post anterior cervical discectomy and fusion of C6-C7 and a compensable evaluation for erectile dysfunction. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). 2. The criteria for entitlement to an effective date earlier than August 16, 2000, for the grant of service connection for internal derangement of the left knee, associated with internal derangement of the right knee have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.104, 3.151, 3.155, 3.156, 3.157, 3.400 (2007). 3. The criteria for entitlement to an effective date earlier than April 2, 2004, for the grant of service connection for major depressive disorder have not been met. 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.1, 3.104, 3.151, 3.155, 3.157, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Dismissal Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2007). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2007). In a statement from the veteran's representative, received in February 2008, the representative specifically requested to withdraw the appeal with respect to the issues of entitlement to a disability evaluation in excess of 60 percent for cervical strain, C6 radiculopathy, left, status post anterior cervical discectomy and fusion of C6-C7 and a compensable disability evaluation for erectile dysfunction. Hence, there remain no allegations of errors of fact or law for appellate consideration with respect to this issue. Accordingly, the Board does not have jurisdiction to review the appeal with respect to the issues the veteran has requested be withdrawn and they are dismissed to that extent. The issues remaining on appeal are addressed in either the REASONS AND BASES or REMAND portion of the decision below. II. Earlier Effective Date for Service Connection In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection on a direct basis, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2007). The effective date for a reopened claim, after a final disallowance, shall be the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. §§ 3.400(q)(2), (r). (2007). (emphasis added). See Nelson v. Principi, 18 Vet. App. 407, 409 (2004); Leonard v. Principi, 17 Vet. App. 447, 451 (2004); Sears v. Principi, 16 Vet. App. 245, 247 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003); see also Lapier v. Brown, 5 Vet. App. 215 (1993). The Board notes that 38 C.F.R. § 3.400 (q) was amended during the pendency of the veteran's claim, effective from October 6, 2006. See 71 Fed. Reg. 52,455-52,457 (Sept. 6, 2006). However, the amendment was to remove a provision relating to reopened claims based on the receipt of service department records. The underlying provisions remained the same with just a redesignation of paragraphs. Accordingly, the change has no impact on the evaluation of the veteran's claim. Another potentially applicable regulation is 38 C.F.R. § 3.157 (2007), which provides that the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim in certain circumstances. Applicable regulations provide that a claim may be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." See 38 C.F.R. § 3.1(p) (2007); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations require a claimant to have an intent to file a claim for VA benefits). A claim, whether "formal" or "informal," must be "in writing" in order to be considered a "claim" or "application" for benefits. See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). Any claim for VA benefits must be submitted in the form prescribed by the Secretary. 38 U.S.C.A. § 5101(a) (West 2002). Section § 5101(a) is a clause of general applicability and mandates that a claim must be filed in order for any type of benefit to accrue or be paid. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Moreover, the Court has explicitly stated that the "mere presence" of a diagnosis of a specific disorder in a VA medical report "does not establish an intent on the part of the veteran" to seek service connection for that disorder. See Brannon v. West, 12 Vet. App. 32, 35 (1998). An informal claim is any communication indicating an intent to apply for one or more benefits, and must identify the benefit sought. 38 C.F.R. § 3.155(a) (2007). Such a communication may be from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. A. Left Knee The veteran's service medical records (SMRs) show that he was seen for complaints involving his right knee on a number of occasions and once for a left knee complaint in 1980. No left knee disorder was identified on any of the veteran's several physical examination reports, to include his separation examination in 1984. The veteran submitted a claim for disability compensation benefits in July 1984. He noted he had been involved in a motor vehicle accident (MVA) in service and listed a number of disorders for consideration. He did not list a left knee disorder on the claim. He was afforded a VA examination in September 1984. No complaints regarding the left knee were noted. A private evaluation report from H. A. Weil, M.D., dated in October 1984, did not include any complaints or findings regarding a left knee disorder. The veteran was granted service connection for internal derangement of the right knee in July 1985. The veteran was afforded a VA examination in July 1988. He complained of bilateral knee pain at the time. There was no history of any specific injury to the left knee. He had a range of motion of 0 to 140 degrees. An x-ray of the left knee was interpreted as normal. There was no impression for a left knee disorder expressed by the examiner. A July 1988 rating decision did not address the issue of a left knee disorder. VA outpatient records show that the veteran was seen for complaints of left knee pain in January 1989. A VA discharge summary from October 1989 reported that the veteran had arthroscopic surgery and a partial medial meniscectomy of the left knee. The veteran was afforded a VA examination in conjunction with an increased evaluation claim for his service-connected right knee disability in November 1994. Both knees were evaluated. He had a range of motion of the left knee from 0 to 125 degrees. The examiner noted that x-rays of the left knee were normal. The clinical assessment was probable degenerative arthritis of the knees bilaterally. Private medical records, for the period from August 1994 to November 1994 were associated with the claims folder. The records did not relate to any complaints or treatment for a left knee disorder. The veteran did not submit a claim for service connection for a left knee disability until February 1995. He also submitted a VA Form 9, as a substantive appeal to a claim for an increased evaluation for his cervical spine disability, in April 1995. He asked that he be given a 40 percent disability evaluation for his knees. The veteran also submitted a statement, received in April 1995, wherein he said he was seeking disability for his knees. He included treatment records from K. T., M.D., for February - March 1995. X-rays of the left knee were said to be normal but a magnetic resonance imaging (MRI) of the left knee showed evidence of an anterior and posterior tear of the medial meniscus. He had surgery on the left knee in March 1995. The veteran was denied service connection for a left knee disability in July 1995. He was provided notice of the rating action in July 1995. He did not submit a notice of disagreement with the decision and it became final. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1995). The veteran continued his appeal for an increased evaluation for his cervical spine disability. The veteran's representative submitted written argument in support of that claim when it was at the Board in December 1998. The representative noted that the veteran had submitted the VA Form 9 in April 1995 and asked for a 40 percent disability evaluation for his knees. The representative contended that this was an informal claim for benefits under 38 C.F.R. § 3.157. The Board issued a decision in regard to the cervical spine issue in April 1999. The Board also addressed the representative's statement regarding the April 1995 submission from the veteran. The Board noted the veteran's claim from February 1995 and his submission in April 1995. The Board also noted that the veteran's claim for a left knee disability was denied in July 1995 and that he had not appealed the denial. The veteran's request to reopen his claim for service connection for a left knee disability was received on August 16, 2000. The veteran said he was seeking service connection for a left knee disability as secondary to his service- connected right knee disability. This was a claim for service connection for a left knee disability but with a different theory. See Bingham v. Principi, 18 Vet. App. 470, 474 (2004), aff'd 421 F.3d 1346 (Fed. Cir. 2005). As the claim for service connection for a left knee disability had been the subject of a prior final denial, the veteran had to submit new and material evidence to reopen his claim. The veteran was ultimately granted service connection for his left knee disability, as secondary to his service-connected right knee, by way of a Board decision dated in May 2004. The RO implemented the Board's decision in April 2005 and established an effective date of August 16, 2000, the date the veteran's claim was received, as the effective date. The veteran has disagreed with the effective date. He has not provided a specific argument regarding why he is entitled to an earlier effective date. He has referred to the fact that he suffered from knee pain years earlier and his effective date should be in 1986. In his notice of disagreement, he said he had surgery on his knee in 1986 [sic] and had two additional surgeries. The veteran's representative presented argument that the veteran had a claim for service connection for a left knee disorder in August 2004. The representative also said that the veteran felt that he had appealed the July 1995 decision. Namely, the veteran believed he had one appeal at that time that involved his knees, back, and neck. A review of the evidence of record does not support an earlier effective date. The veteran's claim for service connection for a left knee disability was denied in July 1995. The decision became final when he failed to appeal. His most recent claim in August 2000, although based on a different theory, is still a claim for a left knee disability and the effective date is governed by the statutory and regulatory provisions applicable to reopened claims based on new and material evidence. The record does not demonstrate the presence of an unadjudicated informal claim between July 1995 and August 2000. There is no communication from the veteran, or other applicable party that could be construed as a claim. 38 C.F.R. § 3.155. Further, the circumstances of the veteran's case do not allow for the application of 38 C.F.R. § 3.157. The veteran's contention that he believed he had one appeal, for multiple issues, pending at the time of the July 1995 decision, does not overcome his responsibility for submitting a notice of disagreement with the decision. He did not. Moreover, when his claim was adjudicated by the Board in 1999, the Introduction of the decision contained a detailed explanation of the left knee claim and how it had been denied and not appealed. It is not credible that the veteran did not realize his left knee claim was not on appeal. There is no merit to the representative's contention that the VA Form 9 from April 1995 could somehow "bridge the gap" between a claim from August 1994 and the claim from August 2000. Any claim from August 1994 was adjudicated in July 1995. The April 1995 VA Form 9, if construed as a claim, would also have been adjudicated in July 1995. Because the form was submitted as an appeal in an unrelated claim, it cannot be construed as a notice of disagreement to a different claim that had not yet been adjudicated. Absent evidence of an earlier claim, the date of August 16, 2000, is the earliest possible date for service connection that can be established. 38 U.S.C.A. § 5110; 38 C.F.R. §§ (q)(2), (r). The veteran's claim for an earlier effective date is denied. B. Major Depressive Disorder The veteran's SMRs are negative for any psychiatric treatment. VA treatment records show that the veteran was prescribed Paxil as early as August 16, 2000. No psychiatric diagnosis was provided at that time. The records do not show a continuity of the prescription. The veteran was given a diagnosis of depression on August 8, 2003, when he was seen at a VA clinic. The VA examiner reported that the veteran said he had been prescribed an antidepressant by his private physician, L. D., M.D., in the past. The veteran was found to have depression and was prescribed Paxil. Associated with the claims folder are treatment records for Dr. D., for the period from November 2000 to May 2004. An entry, dated November 9, 2000, noted the veteran had been prescribed Paxil to deal with complaints of pain of the neck and back. There was no psychiatric diagnosis. The veteran was diagnosed with depression on an entry dated April 12, 2004. The veteran's claim for service connection for depression was received on April 2, 2004. He was afforded a VA examination in January 2005. The examiner noted the veteran's history of treatment by VA in 2003 and Dr. D. in 2000. The veteran was given a diagnosis of major depressive disorder, single episode at the time of the examination. The examiner said that the veteran appeared to have experienced a major depressive episode within a year of his MVA in service (1983). He said there did not seem to be any evidence that this had remitted since that time. The examiner stated that the veteran had depression that was secondary to his service- connected disabilities. The veteran was granted service connection for major depressive disorder by way of a rating decision dated April 28, 2005. He was given an effective date of April 2, 2004, the date his claim for service connection was received. The veteran submitted his notice of disagreement (NOD) in May 2005. He disagreed with the effective date assigned but did not give any reasons why or suggest an effective date. The veteran perfected his appeal in August 2007. He stated that he started receiving treatment for depression in 1988. He said that his effective date should be at least as of 1988. The evidence of record does not show any treatment for a psychiatric diagnosis prior to August 2003. The VA clinic record and note from Dr. D. do reflect that the veteran was prescribed Paxil in 2000. However, the VA and private treatment records do not show psychiatric treatment from that time until the entry from August 2003. Even considering the veteran's allegation of treatment for depression in 1988, he did not submit a claim for service connection for a psychiatric disability until April 2004. Thus, assuming arguendo, that he did receive treatment at that time, there is no basis to establish an earlier effective date in the absence of a claim. See MacPhee, Rodriguez, Jones, and Brannon, supra. The veteran's claim for an earlier effective date is denied. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA and the pertinent implementing regulation, 38 C.F.R. § 3.159 (2007), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. During the pendency of this appeal, the Court issued a decision in March 2006 in the case of 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. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The veteran's claim for service connection for a left knee disability was substantiated when the Board granted service connection in May 2004 and the RO implemented the decision that same month. The veteran's claim for service connection for depression was substantiated when the RO granted him service connection in April 2005. The RO provided the veteran with the notice referenced in Dingess in March 2006. He was provided a SOC as to the effective date for the left knee issue in April 2006. The veteran was later issued a SOC regarding an earlier effective date for service connection for major depression in August 2007. Thus both issues were re-adjudicated after the notice was provided. The veteran has not disputed the contents of the VCAA notice in this case. A notice error is presumed prejudicial to the claimant unless it is demonstrated that (1) any defect in notice was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice provided what was needed, or (3) that a benefit could not possibly have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d. 881, 889-891 (Fed. Cir. 2007). The presumption of any prejudice is overcome in this case. The veteran was given notice on how effective dates are determined. He has been advised of how his specific effective dates were determined. He, and his representative, has submitted argument regarding these two issues and why an earlier effective date is warranted. Moreover, the veteran had not been prohibited from meaningful participation in the adjudication of his claim such that it affects the essential fairness of the adjudication. He has submitted statements in support of his claim. See Sanders, 487 F.3d. at 889. He has pursued a number of different claims with different NODs, SOCs, and appeals. Despite the varied claims, he has continued to follow his specific claims for earlier effective dates. The record shows that the veteran had actual knowledge of how to establish an earlier effective date. Further, the record shows that any reasonable person would understand what was needed from the notice provided. Finally, as noted, the veteran's claims for service connection were substantiated in May 2004 and April 2005, respectively. As a result, the section 5103(a) notice had served its purpose and its application was no longer required. See Dingess, 19 Vet. App. at 490. All available evidence pertaining to the veteran's claim has been obtained. The claims folder contains the veteran's SMRs, private and VA medical records, VA examination reports, lay statements, statements and records submitted by the veteran, and video conference hearing transcript. The veteran's case was remanded for additional development. The Board finds that VA has satisfied its duty to notify and assist. All obtainable evidence identified by the veteran relative to his claim has been obtained and associated with the claims folder, and he has not identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board is also unaware of any such evidence. ORDER The appeal of the issues of entitlement to a disability evaluation in excess of 60 percent for service-connected cervical strain, C6 radiculopathy, left, status post anterior cervical discectomy and fusion C6-C7 and a compensable disability evaluation for erectile dysfunction is dismissed. Entitlement to an effective date earlier than August 16, 2000, for the grant of service connection for internal derangement of the left knee, associated with internal derangement of the right knee is denied. Entitlement to an effective date earlier than April 2, 2004, for the grant of service connection for major depressive disorder is denied. REMAND New and Material Evidence to Establish Service Connection for a Back Disorder The veteran was denied service connection for myofascial syndrome, of the lower back, by way of a rating decision dated in October 1988. He was provided notice of the decision that same month. The record does not reflect that he appealed the decision. The veteran was also denied service connection for a back disability by way of confirmed rating decisions in May 1989 and January 1990. He was provided notice of those decisions. Again, the record does not show that he appealed either of the two decisions. The RO again denied service connection for back disability, characterized at this time as disc herniation L5-S1 and L4-L5 tear, in February 2002. Notice of the rating action was provided in March 2002. The veteran submitted a statement in April 2002. He referenced the February 2002 rating decision. He asked for a copy of his "entire medical file" so that he could ensure that his appeal would include a full and thorough check of the paperwork held by VA. He said "I will be appealing your latest decision date 2/26/02, but this time I will have all my ducks in a row." The veteran submitted a VA Form 9 as a substantive appeal to a different issue that was received on May 14, 2002. He included a copy of his statement from April 2002, a letter from Dr. Davis, dated in May 2002, and lay statements from a number of individuals that said they had known the veteran for a number of years and that he had received treatment for his knees and lower back pain during that time. The letter from Dr. D. was not specific to any condition, although he did reference an earlier letter of his from September 2001 wherein he said the veteran suffered from musculoskeletal pain that involved, inter alia, the lumbosacral spine, disc herniation and disc tear. He also noted that the veteran was involved in a MVA in 1983. In his latest letter Dr. D. said that the veteran's treatment was probably related to the MVA. Taken the veteran's submission in context to the rating decision and the issue involved, the Board finds that his submission in May 2002 to be a NOD with the rating decision of February 2002 that denied service connection for a back disability. Finally, the RO determined that the veteran submitted his latest claim for service connection in December 2001. The claim was adjudicated in February 2002. The RO did not provide the veteran with the notice required by the Veterans Claims Assistance Act of 2000 (VCAA). On remand the veteran must be provided with the proper notice. Service Connection for a Left Shoulder Disorder/38 C.F.R. § 4.30 The veteran's claim for service connection for a left shoulder disorder and his claim for a temporary total evaluation under 38 C.F.R. § 4.30 are inextricably intertwined. His claim for benefits under 38 C.F.R. § 4.30 cannot be resolved without first addressing the issue of service connection for a left shoulder disorder. In that regard the veteran submitted a claim for benefits under 38 C.F.R. § 4.30 in April 2004. He reported that he had had surgery on his left shoulder and would be unable to work for approximately two months. The veteran's claim was adjudicated in July 2006. The rating decision included a denial of service connection for a left shoulder disorder and entitlement to benefits under 38 C.F.R. § 4.30. The veteran submitted his NOD in August 2006 wherein he said he disagreed with the denial of his claim for a temporary total evaluation. He also said that his left shoulder bursitis was the result of his broken neck in service. The veteran was issued a SOC in May 2007. The SOC addressed the issue of service connection as well as the entitlement to benefits under 38 C.F.R. § 4.30. The veteran perfected his appeal that same month. In addition, the veteran has alleged that his left shoulder disorder is related to his MVA in service. He is service connected for other residuals of that MVA, to include his cervical spine disability. The veteran has complained of radiating pain from that disability, and the record does contain complaints of shoulder pain prior to his surgery in 2004. There is no medical evidence that has related those complaints to the veteran's military service; however, Dr. D. did provide a general statement relating the veteran's shoulder complaints to residuals from his MVA in September 2001. The veteran was not afforded an examination in conjunction with this claim. The Board finds that an examination is required to resolve this issue. Right Knee and Major Depressive Disorder Evaluations The veteran's right knee disability has been on appeal for some time. It was last before the Board in March 2005. The last examination for his right knee disability was in July 2004. The veteran was granted service connection for his major depressive disorder based on one examination from January 2005. He has not had an additional examination since that time. The most recent treatment records are dated in March 2007 but the records prior to that are very limited. The evidence of record is not sufficient in order to provide a fair assessment of the veteran's level of disability for either right knee or major depressive disorder. New examinations are required. Accordingly, the case is REMANDED for the following action: 1. The RO must review the claims folder and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002 & Supp. 2007) are fully complied with and satisfied. See also 38 C.F.R. § 3.159 (2007). The REMAND portion of the decision provides some discussion of specific areas to address. The RO should also include notice, as applicable, for the veteran's increased evaluation claim as contemplated under Vazquez-Florez v. Peake, 22 Vet. App. 37 (2008). 2. The RO should contact the veteran and request that he identify the names, addresses and approximate dates of treatment for all health care providers, VA and private, who may possess additional records pertinent to his claims. 3. The veteran should be advised that he should submit evidence to show how his service-connected disabilities affect his employment. This could include statements from his employer, evidence of leave taken because of his disabilities, or other evidence that would demonstrate the impact of his disabilities on his employment. The veteran should also provide evidence of any accommodations made for him by his employer. The Court decision of June 2007 should be reviewed if additional guidance is necessary. 4. The veteran should be afforded a VA examination in regard to his left shoulder claim. The claims folder and a copy of the remand should be provided to the examiner. The examiner should identify any and all disorders associated with the veteran's left shoulder. The examiner is requested to offer an opinion as to whether there is at least a 50 percent probability or greater that any current left shoulder disorder is related to the veteran's MVA of 1983, or any other incident of service. The examiner should provide a complete rationale for all opinions expressed. 5. The veteran should be afforded a psychiatric examination in order to determine the current manifestations of his service-connected major depressive disorder. All necessary tests and studies, including appropriate psychological studies (if determined to be necessary by the examiner), should be conducted in order to identify and describe the symptomatology attributable to the veteran's service-connected disability. The report of examination should contain a detailed account of all manifestations of the disability found to be present. The examiner must also comment on the extent to which the veteran's disability affects occupational and social functioning and the veteran's ability to obtain and maintain substantially gainful employment. The claims folder with a copy of this remand must be made available to the examiner for review in conjunction with the examination. The report of examination must include the complete rationale for all opinions expressed. 6. The veteran should be afforded an examination to determine the nature and severity of his service-connected right knee disability. The claims folder must be made available to the examiner, in conjunction with the examination. All necessary tests should be conducted which the examiner deems necessary. The examiner should review the results of any testing prior to completion of the report. In addition to the results of the physical examination, the examiner is asked to provide an opinion regarding the impact of the veteran's knee disability on his ability to obtain and maintain substantially gainful employment. Any opinions expressed by the examiner must be accompanied by a complete rationale. 7. The RO should issue a statement of the case to the veteran and his representative, addressing the issue of entitlement to service connection for a low back disorder. The veteran and his representative must be advised of the time limit in which he may file a substantive appeal. 38 C.F.R. § 20.302(b). Then, if and only if the appeal is timely perfected, the issues should be returned to the Board for further appellate consideration, if otherwise in order. 8. Thereafter, the RO should re- adjudicate the issues remaining on appeal. If the benefits sought are not granted, the veteran and his representative should be furnished with a supplemental statement of the case and be afforded an opportunity to respond before the record is returned to the Board for further review. Thereafter, the case should be returned to the Board for further appellate review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. 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). ______________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs