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).