Citation Nr: 0813948 Decision Date: 04/28/08 Archive Date: 05/08/08 DOCKET NO. 04-20 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an increased (compensable) disability rating for post-operative residuals of a right inguinal hernia. 2. Entitlement to service connection for an anxiety disorder. REPRESENTATION Veteran represented by: Jenny Y. Twyford, Esq. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD David T. Cherry, Counsel INTRODUCTION The veteran served on active duty from November 1971 to August 1973. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. Procedural history Service connection was granted for post-operative residuals of a right inguinal hernia in September 1974. A noncompensable (zero percent) disability rating was assigned. In a February 2004 rating decision, the RO denied the veteran's claim of entitlement to an increased (compensable) disability rating for the service-connected post-operative residuals of a right inguinal hernia and a claim of entitlement to service connection for anxiety. The veteran perfected an appeal of those denials. In September 2005, the veteran oral testimony at a hearing held at the RO before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the veteran's claim folder. In a November 2005 decision, the Board denied an increased rating for post-operative residuals of a right inguinal hernia and service connection for anxiety. The veteran subsequently appealed the Board's November 2005 denial of these two claims to the United States Court of Appeals for Veterans Claims (the Court). In August 2007, counsel for the veteran and the Secretary of VA filed a Joint Motion for Partial Remand to the Board. An Order of the Court dated in September 2007 granted the motion and vacated the Board's decision as to those two denials. The appeal is REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. VA will notify the veteran if further action is required on his part. Issues not before the Board at this time In the November 2005 Board decision, service connection was denied for a depressive disorder and for hypertension. In the August 2007 Joint Motion, it was noted that the veteran indicated that he no longer wised to pursue the claims of entitlement to service connection for a depressive disorder and hypertension and that therefore these claims were deemed to have been abandoned. See Bucklinger v. Brown, 5 Vet. App. 435, 436 (1993). Those issues have therefore been resolved. See 38 C.F.R. § 20.1100 (2007). In November 2005, the Board remanded the issue of entitlement to service connection for a blood disorder, diagnosed as idiopathic thrombocytopenic purpura. That issue apparently remains pending at the AMC, since there is no indication that the requested development has been completed and the claim readjudicated. REMAND For reasons expressed immediately below, the Board believes that the issues on appeal must be remanded for further procedural and evidentiary development. (CONTINUED ON NEXT PAGE) 1. Entitlement to an increased (compensable) disability rating for post-operative residuals of a right inguinal hernia. Reasons for remand VA examination The October 2007 Joint Motion reflects that the counsel for the veteran and the Secretary of the VA determined that a physical examination must be scheduled which addresses whether the veteran's post-operative right inguinal hernia scar is superficial and painful on examination and whether the scar limits the function of the affected area. Veterans Claims Assistance Act of 2000 (VCAA) notice In the August 2003 and March 2004 VCAA notice letters, the RO informed the veteran that "to establish entitlement to an increased evaluation for your service-connected disability, the evidence must show that your service-connected condition has gotten worse." See August 20, 2003 letter, page 7; March 19, 2004 letter, page 5. More recent holdings of the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) and the United States Court of Appeals for the Federal Circuit in Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007) and in Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007) clearly indicate that VCAA notice specifically pertaining to the degree of disability and effective dates should be furnished to claimants in increased -rating cases. In this case, the veteran was not provided VCAA notice pertaining to effective dates. Subsequent to Dingess/Hartman, the Court in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) held that a notice letter must inform the veteran: (1) that, to substantiate a claim, the veteran must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity and the effect that worsening has on the claimant's employment and daily life; (2) if the veteran is rated under a Diagnostic Code that 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 of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the notice letter must provide at least general notice of that requirement; (3) that if an increase in disability is 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 0% to as much as 100% (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; and (4) of examples of the types of medical and lay evidence that the claimant may submit (or ask VA 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. Although the veteran was provided VCAA notice as to the need for evidence showing that his service-connected post- operative residuals of a right inguinal hernia has gotten worse, he was not given notice as to the need for evidence of the effect that worsening has on his employment and daily life and as to the third and fourth prongs of the holding in Vazquez-Flores. 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. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). 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. 2. Entitlement to service connection for an anxiety disorder. The October 2007 joint motion reflects that the counsel for the veteran and the Secretary of the VA determined that "the Board should fully address whether [the veteran] is entitled to a VA medical examination and/or medical nexus opinion under the statutory duty to assist." See Joint Motion, page 7. The veteran has been diagnosed with a panic disorder. He a medic in service. The veteran has alleged that his current anxiety disorder is related to "a series of unpleasant experiences that [went] with [his] duty as a medic." See a November 2004 statement of the veteran. The Board finds that a VA examination is necessary to determine whether a relationship exists between the currently diagnosed psychiatric disability and the veteran's service. Accordingly, this case is remanded to the Veterans Benefits Administration (VBA) for the following actions: 1. VCAA notice required pursuant to Dingess/Hartman and Vazquez-Flores should be furnished to the veteran, with a copy to his counsel. 2. VBA must arrange for the veteran to undergo a physical examination to determine the severity of his service- connected post-operative right inguinal hernia scar. The examiner should indicate whether the scar is superficial and painful on examination. The examiner should also note whether the scar limits the function of the affected area and describe any such limitations. The report of the physical examination should be associated with the veteran's VA claims folder. 3. VBA should schedule the veteran for an examination to determine the etiology of his panic disorder. After examination of the veteran and review of all pertinent medical records, the examiner should provide an opinion as to whether it is as least as likely as not that the veteran's panic disorder is related to his military service, to include his duties as a medic. The report of the examination should be associated with the veteran's VA claims folder. 4. After the development requested above has been completed to the extent possible, and after undertaking any additional development it deems necessary, VBA should then review the record and readjudicate the veteran's claims. If the decision remains unfavorable to the veteran, in whole or in part, a supplemental statement of the case (SSOC) should be prepared. The veteran and his counsel should be provided with the SSOC and an appropriate period of time should be allowed for response. 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).