Citation Nr: 0815126 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 92-25 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a compensable disability rating for tinea cruris. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from May 1978 to October 1982. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) San Juan Regional Office. A hearing was held before the undersigned Veterans Law Judge in January 2001. 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 When the veteran filed his claim, the Veterans Claims Assistance Act of 2000 (VCAA) had not yet been enacted. In June 2004, the veteran received notice that he should show that his disability had worsened. Significantly, however, in Vazquez-Flores v. Peake, 22 Vet App 37 (2008), the United States Court of Appeals for Veterans Claims (Court) established significant new requirements with respect to the content of the duty-to-assist notice which must be provided to a veteran who is seeking a higher rating. With respect to increased rating claims, the Court found that, at a minimum, a 38 U.S.C. § 5103(a) notice requires that the Secretary notify the veteran that, to substantiate such a claim: (1) the veteran 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 veteran's employment and daily life; (2) if the Diagnostic Code (DC) under which the veteran is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the veteran demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the veteran'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 veteran; (3) the veteran 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 0% to as much as 100% (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; and (4) the notice must also provide examples of the types of medical and lay evidence that the veteran may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., 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. In the Vazquez-Flores case, the Court found that the VCAA notice that was provided to the veteran was inadequate. VA only advised the veteran to submit evidence that shows that his disability had "gotten worse." The Court in that case found that the notice provided was inadequate due to the confusing nature of the two notices, and the failure to explain that evidence is required to demonstrate the worsening of the service-connected condition and the effect of that worsening on the veteran's occupational and daily life, or to provide, at least in general terms, the criteria beyond the effect of the worsening of the disability upon the occupational and daily life that is necessary to be awarded the higher disability rating for the condition. Accordingly, adequate section 5103(a) notice for the veteran's increased-compensation claims should have included, at a minimum, notification that he must either provide, or ask the Secretary to obtain, medical or lay evidence demonstrating the worsening of the disability and the effect of that worsening on his employment and daily life. Additionally, because at least some of the higher disability ratings authorized under the DC (and referenced DCs) under which his disabilities are rated are based on specific criteria beyond the obvious effect of the worsening of the disability and its effect upon his employment and daily life, the Secretary should have notified the veteran, at least in general terms, of the information and evidence necessary to establish these more specific criteria. Applying these principles to the present case, the Board finds that although the veteran was previously provided a VCAA notification letter, it did not meet the requirements set forth in Vazquez-Flores v. Peake. In fact, the letter in the present case contained virtually the same information which was found inadequate in Vazquez-Flores v. Peake. A remand is required to correct this deficiency. Accordingly, the case is REMANDED for the following action: 1. Additional VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must be provided to the veteran, including a description of the provisions of the VCAA, notice of the evidence required to substantiate the claim, and notice of the veteran's responsibilities and VA's responsibilities in developing the evidence, including what evidence the veteran is responsible to obtain and what evidence VA will obtain, and a request that the veteran provide any evidence in his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002 & Supp. 2007). The notice letter must explain that evidence is required to demonstrate the worsening of the service-connected condition and the effect of that worsening on the veteran's occupational and daily life, or to provide, at least in general terms, the criteria beyond the effect of the worsening of the disability upon the occupational and daily life that is necessary to be awarded the higher disability rating for the condition (such as a specific measurement or test result). The veteran should then be afforded an appropriate period of time to respond. VA should attempt to obtain any additional evidence identified by the veteran. 4. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the veteran and his representative. After the veteran and his representative have had an adequate opportunity to respond, the appeal 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). _________________________________________________ JOAQUIN AGUAYO-PERELES 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).