Citation Nr: 0815030 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 05-02 395 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a rating in excess of 10 percent for mechanical low back pain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Ann-Monique Clark, Associate Counsel INTRODUCTION The veteran had active service from February 1996 until February 1999. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Nashville, Tennessee. 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 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In the present case, the Board finds that additional development is required in order to satisfy VA's obligations under the VCAA. Specifically, it is determined that a VA examination must be obtained to determine the severity of the veteran's low back disability, for the reasons discussed below. The veteran has indicated in a statement dated January 29, 2008, that her service-connected mechanical lower back pain has worsened. Her last VA examination was conducted in August 2004. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995) (while the Board is not required to direct a new examination simply because of the passage of time, VA's General Counsel has indicated that a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination). It is additionally noted that the VA outpatient records, while more recent, are not adequate to rate the claim. For example, such records do not contain specific range of motion findings. Under these circumstances, the veteran should be afforded a VA examination for the purpose of determining the current severity of the service-connected disability on appeal. Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board further determines that additional development is required with respect to the VCAA notice requirements. In this regard, the U. S. Court of Appeals for Veterans Claims held in Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008) that, for an increased-compensation claim, § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008). It was further held that 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 demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life (such as a specific measurement or test result), VA must provide at least general notice of that requirement. VA must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. In this case, the notice letters of record do not satisfy the requirements of Vazquez-Flores. Therefore, additional notice should be sent to the veteran to cure this notice deficiency. Moreover, following the issuance of such notice, the matter on appeal should be readjudicated by the Agency of Original Jurisdiction (AOJ). Accordingly, the case is REMANDED for the following actions: 1. Issue a VCAA notice letter which satisfies all VCAA notice obligations in accordance with Dingess/Hartman v. Nicholson, Nos. 01-19 17 & 02-1506 (U.S. Vet. App. March 3, 2006), Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002), Vazquez-Flores v. Peake, 22 Vet.App. 37 (2008)38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002), 38 C.F.R. § 3.159, and any other applicable legal precedent. Such notice should specifically apprise the appellant of the evidence and information necessary to substantiate her increased rating claim. Specifically, the notice apprise the claimant that, to substantiate her claim, the medical or lay evidence must show a worsening or increase in severity of the disability, and the effect that such worsening or increase has on the claimant's employment and daily life. Additionally, the notice should also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation. The notice letter additionally should inform the claimant of the division of responsibility between her and VA in producing or obtaining evidence or information. The veteran should also be advised to send to VA all evidence in her possession which pertains to the appeal. She should also be provided notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 2. The veteran should be afforded an examination to determine the severity of her service-connected mechanical lower back pain. The claims folder must be made available to the examiner in conjunction with the examination. Any testing deemed necessary should be performed. The examiner should obtain a detailed clinical history from the veteran. All pertinent pathology found on examination should be noted in the report of the evaluation. The examiner should provide ranges of motion of the lower back, describe symptoms exhibited by the veteran to include any ankylosis, gait, scoliosis, muscle spasms, guarding, localized tenderness, neurological and orthopedic involvement, limitation of motion, pain on use, weakness, excess fatigability, and/or incoordination. The examiner should also assess whether the veteran exhibits signs and symptoms of intervertebral disc syndrome, and address the number of incapacitating episodes, if any, experienced by the veteran, giving the estimate in the number of weeks (total duration) over the past twelve months. 3. When the above actions are completed, readjudicate the claim for an increased rating for the veteran's service- connected mechanical lower back pain. If the benefit sought is not granted, the veteran and her representative should be furnished a supplemental statement of the case and be afforded an opportunity to respond. The case should then 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). _________________________________________________ ERIC S. LEBOFF Acting 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).