Citation Nr: 0814961 Decision Date: 05/06/08 Archive Date: 05/12/08 DOCKET NO. 02-09 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for chondromalacia of the left knee for the period of time prior to April 3, 2002. 2. Entitlement to a disability rating in excess of 20 percent for chondromalacia of the left knee for the period of time subsequent to April 2, 2002. 3. Entitlement to an effective date earlier than April 3, 2002 for the assignment of a 20 percent disability rating for chondromalacia of the left knee. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The veteran had active service from June 1970 to December 1971, and from December 1974 to September 1975. This matter came before the Board of Veterans' Appeals (Board) on appeal of an August 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. That rating decision denied entitlement to a disability rating in excess of 10 percent for the veteran's service-connected left knee disability. Subsequently, an April 2002 rating decision granted an increased rating of 20 percent for the veteran's left knee disability, effective April 3, 2002. The veteran continues to appeal for a higher disability rating. He also claims that an earlier effective date for the 20 percent rating for his left knee disorder is warranted. The Board has rephrased the issues above to more accurately reflect the appeal. The RO issued a Statement of the Case, with respect to the issue involving entitlement to an earlier effective date, and the veteran timely appealed this issue. However, the issue of entitlement to an earlier effective date for the assignment of a 20 percent rating essentially hinges upon the law and regulations with respect to rating the veteran's service-connected disability during the period of time in question, rather than the law and regulations specific to the assignment of effective dates. In February 2006, the Board issued a decision on the veteran's appeal. In January 2007 the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand, vacating and remanding the February 2006 Board decision that found that the criteria for a disability evaluation in excess of 20 percent for the left knee disability had not been met at any time during the appeal period, and that the criteria for an effective date prior to April 3, 2002, for the award of a 20 percent rating for the left knee disorder had not been met. The Board issued another decision on the veteran's appeal in April 2007. Again, the case was appealed to the Court which again granted a Joint Motion for Remand in October 2007 which vacated and remanded the April 2007 Board decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Since one of the issues on appeal specifically involves the effective date assigned for a 20 percent disability rating, notice that meets the requirements of Dingess/Hartman should be provided on remand. In regard to the veteran's claims for increased disability ratings, the Board observes that, in light of the Court's recent decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the veteran was not provided with a duty-to-inform notice that complied with the VCAA. The Court held in part that VA's duty to notify a claimant seeking an increased evaluation included advising 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. 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. Additionally, 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. The most recent VA examination of the veteran was conducted in 2004 and does not provide medical evidence with respect to all potential diagnostic criteria related to the rating of knee disabilities. As such, another VA Compensation and Pension examination of the veteran should be conducted. The Court has also held that, when the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). The veteran has indicated that the only medical facility where he receives treatment for his service-connected left knee disability is at the VA medical Center (VAMC) in Columbia, South Carolina. The last time copies of the veteran's VA treatment records were obtained was in 2004. The veteran's most recent VA treatment records need to be obtained and associated with the claims file. Records generated by VA are constructively included within the record. If records of VA treatment are material to the issue on appeal and are not included within the claims folder, a remand is necessary to acquire such VA records. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: 1. Send the appellant a letter that complies with the notification requirements of 38 U.S.C.A. § 5103(a), C.F.R. § 3.159, Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), and Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 491 (2006) for all of the issues indicated above. Under Vazquez-Flores, advise the veteran to submit evidence that his conditions have worsened, including the effect a worsening of the conditions has on employment and daily life. Provide him notice of the criteria necessary under the appropriate Diagnostic Codes to establish entitlement to an increased rating for his left knee disability. Under Dingess, advise the veteran of how disability ratings and effective dates are assigned. 2. Request a complete copy of the veteran's current VA medical treatment records for the period of time from November 2004 to the present from VAMC Columbia, SC. 3. The veteran should be accorded a joints examination. The report of examination should include a detailed account of all manifestations of the left knee disorder found to be present All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. The examiner is specifically requested to indicate: Range of motion of the left knee in degrees and to indicate if any motion is limited due to pain. Is there any subluxation or lateral instability of the left knee? Is there any ankylosis of the left knee? Does the veteran have dislocation or removal of the semilunar cartilage of the left knee? The claims folder and a copy of this remand must be made available and reviewed by the examiner in conjunction with the examination. The examiner should provide complete rationale for all conclusions reached. 4. Following the above, readjudicate the appellant's claims. If any benefit on appeal remains denied, a Supplemental Statement of the Case should be issued and the appellant and his representative should be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ D. C. Spickler 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).