Citation Nr: 0814862 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 05-11 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of asbestos exposure and if so, whether the reopened claim should be granted. 2. Entitlement to an initial rating in excess of 10 percent prior to September 1, 2005, and in excess of 20 percent from September 1, 2005, for right sacroiliitis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Kim, Associate Counsel INTRODUCTION The veteran served on active duty from June 1974 to June 1977 and from November 1983 to September 2000. This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, and a January 2004 rating decision of the VA RO in Providence, Rhode Island. On his April 2005 VA Form 9, the veteran requested a Board hearing at the RO. In November 2005 correspondence, however, he indicated that he wised to withdraw his request for a hearing before the Board. Thus, his request for a hearing before a member of the Board is considered withdrawn. See 38 C.F.R. § 20.704 (2007). In a July 2006 rating decision, the Providence RO increased the rating for the right sacroiliitis to 20 percent, effective September 1, 2005. This did not satisfy the veteran's appeal. REMAND The Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2006), 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 the January 2004 rating decision on appeal, the Statement of the Case, and the Supplemental Statement of the Case, the RO has adequately informed the veteran of the basis for the prior denial of his claim for service connection for residuals of asbestos exposure and the type of evidence that is needed to reopen the claim. However, on no occasion has the RO sent the veteran a letter informing him of the evidence that he is to provide and the evidence that VA will attempt to obtain on his behalf. Accordingly, the Board concludes that the veteran has not provided VCAA-compliant notice. With respect to the evaluation of the veteran's right sacroiliitis, the record reflects that he was last afforded a VA examination of this disability in December 2006. The Board finds that the examination report is inadequate for rating purposes because the examiner failed to address all pertinent disability factors, to include the extent of functional impairment on repeated use and during flare-ups, and the extent of functional impairment due to pain, weakened movement, incoordination and excess fatigability. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In addition, a January 2008 prescription form reflects a diagnosis of LBS (low back syndrome) and a request to the physical therapy department to evaluate and treat the veteran. The Board observes that this indicates a worsening of the veteran's disability. Finally, the record reflects that the veteran has not been provided appropriate notice with respect to the disability- rating or effective-date element of this claim. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The veteran should be provided all notice required under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2007), to include notice in accordance with Dingess/Hartman v. Nicholson. 2. The RO or AMC should undertake appropriate development to obtain any pertinent evidence identified but not provided by the veteran. In any event, it should associate with the claims folders a copy of any pertinent VA outpatient records for the period since July 2007. 3. Then, the RO or AMC should afford the veteran a VA examination to determine the current extent of functional impairment due to his right sacroiliitis. The claims folders must be made available to and reviewed by the examiner. All indicated studies, including range of motion studies in degrees, should be performed. In reporting range of motion, the examiner should identify any excursion of motion accompanied by pain. The examiner should identify any objective evidence of pain and assess the extent of any pain. The extent of any incoordination, weakened movement and excess fatigability on use should be described. The examiner should express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the veteran describes flare-ups). If feasible, the examiner should assess any additional functional impairment during flare-ups, on repeated use or due to incoordination, weakened movement, and/or excess fatigability in terms of additional degrees of limitation of motion. If this is not feasible, the examiner should so state. The examiner should indicate whether the right sacroiliitis is productive of any neurological impairment in either lower extremity. The examiner should identify any reflex changes, characteristic pain, and muscle spasm, and should provide an opinion concerning the degree of severity of any radicular symptomatology. The examiner should assess the frequency and duration of any episodes of intervertebral disc syndrome, and in particular should assess the frequency and duration of any episodes of acute signs and symptoms of intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician. To the extent possible, the examiner should distinguish the manifestations of the right sacroiliitis from those of any non service-connected disability. The examiner should also provide an opinion concerning the impact of the service-connected right sacroiliitis on the veteran's ability to work. The rationale for all opinions expressed should be provided. 4. The RO or the AMC should also undertake any other development it determines to be warranted. 5. Then, the RO or the AMC should readjudicate the issues on appeal. If any benefit sought on appeal is not granted to the veteran's satisfaction, the veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome of this case. The veteran need take no action until he is otherwise notified. 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 case 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). ______________________________________________ Shane A. Durkin 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).