Citation Nr: 0814138 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 03-35 113 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased evaluation for lumbosacral strain with degenerative arthritis and degenerative disc disease, evaluated as 10 percent disabling prior to November 14, 2003, and as 20 percent disabling from November 14, 2003. 2. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy, left lower extremity. 3. Entitlement to an initial evaluation in excess of 10 percent for radiculopathy, right lower extremity. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. N. Driever, Counsel INTRODUCTION The veteran had active service from May 1959 to June 1983. These claims come before the Board of Veterans' Appeals (Board) on appeal of March 2003 and May 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The veteran testified in support of these claims at a videoconference hearing held in December 2006 before the undersigned Veterans Law Judge. In April 2007, the Board remanded these claims to the RO via the Appeals Management Center (AMC) in Washington, D.C. For the reasons discussed below, the Board again REMANDS these claims to the RO via AMC. REMAND The veteran claims entitlement to an increased evaluation for a low back disability and higher initial evaluations for disabilities of the left and right lower extremities. Additional action is necessary before the Board decides these claims. On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2007). The VCAA and its implementing regulations are applicable to this appeal. The VCAA and its implementing regulations provide that VA will notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. They also require VA to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that such assistance would aid in substantiating the claim. The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Court has indicated that VCAA notice must be given prior to an initial unfavorable decision by the agency of original jurisdiction. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court also indicated that the VCAA requires VA to provide notice, consistent with the requirements of 38 U.S.C.A. § 5103(A), 38 C.F.R. § 3.159(b), and Quartuccio, that informs the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. On March 3, 2006, the Court held that the aforementioned notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). The Court further held that notice under the VCAA must inform the claimant that, if the RO grants his service connection claim, it will then assign such an award a disability rating and an effective date. Id. at 486. In January 2008, the Court held that, with regard to claims for increased compensation, 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. The Court further held that, 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. As well, the Court held that 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 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, including 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In this case, VA has not provided the veteran adequate notice and assistance with regard to his claims. Therefore, any decision to proceed in adjudicating them would prejudice the veteran in the disposition thereof. Bernard v. Brown, 4 Vet. App. at 392-94. First, during the course of this appeal, the RO provided the veteran VCAA notice on his claim for an increased evaluation, but given the Court's recent decision in Vazquez-Flores, such notice is inadequate. This notice informed the veteran of the need to submit medical or lay evidence demonstrating a worsening or increase in severity of his low back disability. It did not inform him of the need to submit evidence describing the effect that worsening has on his employment and daily life. Such notice also did not inform the veteran of the need to submit more specific evidence satisfying the criteria for an increased rating under the rating code pursuant to which his low back disability is rated. This type of notice is necessary in this case as the diagnostic code (DC) under which the veteran's low back disability is rated authorizes an increased evaluation based on specific criteria, rather than on a mere showing of a worsening of the disability and its effect upon his employment and daily life. The veteran has not made any written or oral statements or taken any actions, which show that he has actual knowledge of the aforementioned information. The non-receipt of adequate notice is thus not a harmless error. Second, under 38 U.S.C.A. § 5103A, VA's duty to assist 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. In this case, examinations in support of the veteran's claims are necessary. The RO afforded the veteran such examinations during the course of this appeal, but the reports of these examinations are inadequate to decide the claims on appeal. Therein, examiners did not include all clinical findings necessary to rate the veteran's low back and left and right lower extremity disabilities pursuant to all pertinent diagnostic codes in the rating schedule. Based on the foregoing, the Board REMANDS this case for the following action: 1. Provide the veteran VCAA notice pertaining to his claim for an increased evaluation, which satisfies the requirements of the Court's recent holding, noted above. 2. Arrange for the veteran to undergo a VA examination in support of his claims for increased/higher initial evaluations for a low back and left and right lower extremity disabilities. Forward the claims file to the examiner for review of all pertinent documents therein and ask the examiner to confirm in his written report that he conducted such a review. Following a thorough evaluation, during which all indicated tests are performed, the examiner should: a) note all manifestations of the veteran's low back and left and right lower extremity disabilities, including, if appropriate, limitation of motion, ankylosis, abnormal gait, abnormal spinal contour, pain, tenderness, muscle spasm, guarding and nerve damage; b) identify the severity of the manifestations in terms of how often they manifest and to what degree; c) characterize any limitation of motion of the lumbar spine as slight, moderate or severe; d) based on x-ray results, specifically indicate whether the veteran has arthritis of the low back; e) indicate whether the veteran has disc disease and, if so, identify the frequency and duration of any incapacitating episodes of such disease the veteran suffers during a 12 month period; f) characterize any disc disease as mild, moderate, severe or pronounced; g) indicate whether the left and right lower extremity disabilities cause sensory disturbances only; h) determine whether the peripheral neuropathy in each lower extremity represents mild, moderate or severe incomplete paralysis or complete paralysis; i) consider whether the veteran's lumbar spine or left or right lower extremity disability causes functional loss due to reduced or excessive excursion, decreased strength, speed, or endurance, or the absence of necessary structures, deformity, adhesion, and/or defective innervation and, if so, describe the extent of this loss during flare-ups or after repetitive use in terms of additional loss of motion beyond that which is observed clinically; j) describe the impact of each of the veteran's disabilities on his daily activities and employability; and k) provide detailed rationale, with specific references to the record, for the opinions provided. 3. Readjudicate the claims based on all of the evidence of record. If any benefit sought on appeal is not granted to the veteran's satisfaction, provide the veteran a supplemental statement of the case and an opportunity to respond thereto. Thereafter, subject to current appellate procedure, return this case to the Board for further consideration, if in order. By this REMAND, the Board intimates no opinion as to the ultimate disposition of the appeal. No action is required of the veteran unless he receives further notice. He does, however, have the right to submit additional evidence and argument on the remanded claims. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). The law requires that these claims be afforded expeditious treatment. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes) (providing that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled expeditiously); see also VBA's Adjudication Procedure Manual, M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03 (directing the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court). _________________________________________________ V. L. JORDAN 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).