Citation Nr: 0814269 Decision Date: 04/30/08 Archive Date: 05/08/08 DOCKET NO. 04-30 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a left knee disorder as secondary to service connected right knee and lumbar spine disabilities. 2. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease of the right knee (the "right knee disability"). 3. Entitlement to an increased rating for lumbar para vertebral myositis, L3-L4 and L4-L5 bulging disc with L5 radiculopathy (the "back disability"), currently rated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The veteran served on active duty from October 1988 to December 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In March 2007, the Board remanded the claims to the RO, via the Appeals Management Center (AMC) in Washington, D.C., for further development. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the veteran if further action is required. REMAND In November 2007, the veteran submitted additional evidence pertaining to his claims which has not been considered by the RO. Pursuant to 38 C.F.R. § 20.1304, pertinent evidence received by the Board necessitates a return of the case to the RO for review and consideration and preparation of another supplemental statement of the case (SSOC) prior to a Board decision unless there has been a waiver of such referral. In response to a March 2008 Board letter, the veteran indicated his desire not to waive RO review of this evidence in the first instance. Therefore, the case must be returned to the RO. Additionally, after the Board's remand in March 2007, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which held that notice complying with section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate an increased rating 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. While this case is in remand status, the veteran should be provided corrective notice on his increased rating claim consistent with the holding in Vazquez-Flores. Accordingly, the case is REMANDED for the following action: 1. The veteran should be provided corrective notice on his claim for an increased rating for lumbar para vertebral myositis, L3-L4 and L4-L5 bulging disc with L5 radiculopathy consistent with the holding in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). In particular, he should be advised as follows: a) to submit medical or lay evidence demonstrating a worsening or increase in severity of his disabilities and the effect that worsening has on his employment and daily life; and b) notice of the schedular criteria for evaluating lumbosacral strain under Diagnostic Code 5237 and intervertebral disc syndrome (IVDS) under DC 5243. 2. Obtain the veteran's clinical records of treatment with the VA North Texas Health Care System (HCS) since October 2007. 3. After completing any additional necessary development, the RO should readjudicate the issues on appeal, considering the new evidence submitted by the veteran in November 2007. If the dispositions remain unfavorable, the RO should furnish the veteran and his representative an SSOC and afford them the applicable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. 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). _________________________________________________ JOHN J. CROWLEY 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).