Citation Nr: 0814872 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 04-43 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for degenerative joint disease, right shoulder. 2. Entitlement to an evaluation in excess of 20 percent for degenerative changes, cervical spine. 3. Entitlement to an evaluation in excess of 10 percent for a right wrist strain. 4. Entitlement to an evaluation in excess of 10 percent for degenerative changes, left knee. 5. Entitlement to an evaluation in excess of 10 percent for residuals, left ankle injury. 6. Entitlement to an evaluation in excess of 30 percent for cluster headaches. 7. Entitlement to an effective date prior to April 28, 2005, for the assignment of a 30 percent evaluation for cluster headaches. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD L. J. N. Driever, Counsel INTRODUCTION The veteran had active service from March 1965 to February 1968. These claims come before the Board of Veterans' Appeals (Board) on appeal of an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. The veteran's appeal initially included claims of entitlement to service connection for right knee and liver disabilities and hypertension. However, in a rating decision dated February 2008, the RO granted these claims. They are thus not now before the Board for appellate review. The Board REMANDS the veteran's claims to the RO via the Appeals Management Center (AMC) in Washington, D.C. REMAND The veteran claims entitlement to increased evaluations for right shoulder, cervical spine, right wrist, left knee and left ankle disabilities and headaches and an earlier effective date for the assignment of a 30 percent evaluation for headaches. 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 addition, 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, he 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 his employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008). The Court further held that, if the Diagnostic Code (DC) 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 the claimant at least general notice of that requirement. The Court additionally held that the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant DCs, 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 list examples of the types of medical and lay evidence the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. Such evidence includes 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. Id. at 43-44. In this case, during the course of this appeal, the RO provided the veteran VCAA notice on his claims for increased evaluations, but given the Court's recent decision in Vazquez-Flores, such notice is inadequate. It informed the veteran of the need to submit medical or lay evidence demonstrating a worsening or increase in severity of his disabilities and explained that VA would consider the impact of his disabilities on his employment. It did not inform the veteran of the need to submit evidence describing the effect any worsening had 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 increased ratings under the diagnostic codes (DC) pursuant to which his disabilities were rated. This type of notice is necessary in this case as the DCs under which the veteran are rated authorizes increased evaluations based on specific criteria, rather than on a mere showing of a worsening of the disabilities and their effect upon his employment and daily life. The veteran has not submitted any statements or taken any actions, which show that he has actual knowledge of this requirement. Any decision to proceed in adjudicating these claims would therefore prejudice the veteran in the disposition thereof. Bernard v. Brown, 4 Vet. App. 384, 392- 94 (1993). In addition, in a November 2007 rating decision, the RO increased the evaluation assigned the veteran's cluster headaches to 30 percent, effective from April 28, 2005. Thereafter, in a written statement received in December 2007, the veteran expressed disagreement with the assigned effective date. To date, the RO has not issued a statement of the case is response. 38 C.F.R. §§ 19.9, 20.200, 20.201 (2006); see also Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995); Archbold v. Brown, 9 Vet. App. 124 (1996). This procedural defect must be cured on remand. Once accomplished, the RO should return the veteran's earlier effective date claim to the Board for consideration only if the veteran perfects his appeal in a timely manner. Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); see also In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997) (holding that, if the claims file does not contain a notice of disagreement, a statement of the case and a substantive appeal, the Board is not required, and in fact, has no authority, to decide the claim). Based on the foregoing, the Board REMANDS this case for the following action: 1. Provide the veteran VCAA notice letter pertaining to his claims, which satisfies the requirements of the Court's holdings in Vazquez-Flores. Such notice letter must inform the veteran of the need to submit evidence describing the effect any worsening in his disabilities has on his employment and daily life and satisfying the specific criteria for increased ratings under the DCs pursuant to which his disabilities are rated. The notice letter should include the following: As to the veteran's service-connected right shoulder disability, he should be given copies of 38 C.F.R. § 4.71a, Diagnostic Codes 5200-5203. As to the veteran's service-connected degenerative changes of the cervical spine, he should be provided with copies of 38 C.F.R. § 4.71a, Diagnostic Code 5242. As to the veteran's service-connected degenerative changes of the right wrist, he should be provided with copies of 38 C.F.R. § 4.71a, Diagnostic Code 5215. As to the veteran's service-connected degenerative changes of the left knee, he should be provided with copies of 38 C.F.R. § 4.71a, Diagnostic Code 5003- 5010 and 5256 through 5261. As to the veteran's service-connected degenerative changes of the left ankle, he should be provided with copies of 38 C.F.R. § 4.71a, Diagnostic Code 5010- 5271. As to the veteran's service-connected cluster headaches, he should be provided with copies of 38 C.F.R. § 4.71a, Diagnostic Code 8100. 2. Provide the veteran a statement of the case pertaining to the claim of entitlement to an earlier effective date for the assignment of a 30 percent evaluation for cluster headaches. If the veteran then perfects his appeal of the RO's November 2007 rating decision by submitting a timely and adequate substantive appeal, return the claim to the Board for appellate review. 3. Readjudicate all properly perfected 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 and his attorney 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. The veteran has 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. 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). _________________________________________________ C. CRAWFORD 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).