Citation Nr: 0815138 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 03-27 230 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for residuals of frostbite of the feet. 2. Entitlement to a rating in excess of 40 percent for the residuals of lumbar spine fracture. 3. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from August 1945 to January 1947 and from September 1950 to May 1952. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision by the Philadelphia, Pennsylvania, Regional Office and Insurance Center (RO) of the Department of Veterans Affairs (VA). In November 2005, the veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The case was remanded for additional development in February 2006. By correspondence dated April 23, 2008, the Board notified the veteran that a motion to advance his case on the docket had been granted. 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 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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, 3.326(a) (2007). A review of the record shows the veteran was notified of the VCAA duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in February 2002, November 2002, May 2004, and March 2006. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in September 2006. The Board finds that this case must be remanded for additional development and that remedial VCAA notice is required as result of the decision in Vazquez- Flores v. Peake, 22 Vet. App. 37 (2008). The VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. See 38 C.F.R. § 3.159 (2007). For records in the custody of a Federal department or agency, VA must make as many requests as are necessary to obtain any relevant records, unless further efforts would be futile; however, the claimant must cooperate fully and, if requested, must provide enough information to identify and locate any existing records. 38 C.F.R. § 3.159(c). VA has a duty to assist the veteran which includes conducting a thorough and contemporaneous medical examination for his increased rating claim. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In this case, the Board, in its February 2006 remand instructions, among other things, requested that appropriate action be taken to have the National Personnel Records Center (NPRC) search for alternative records. It was noted that a request for search of alternative records was submitted to NPRC in 1994, but that there was no apparent response. The Board also noted that the NA Form 13055 the veteran completed in 1994 did not address treatment for frostbite of the feet, but that he had subsequently stated he had received treatment for frostbite in service. In fact, in correspondence dated in June 2003 he reported that he landed in LeHarve, France, and was treated for frostbite to the legs at the Camp Phillip Morris hospital in February 1945. A review of the available record, however, does not indicate any action was taken to search for alternative records. The Board notes that there is no indication the veteran was involved in actual combat during service and that separation examinations dated in January 1947 and May 1952 include no evidence of a cold injury. In light of the reports demonstrating his service medical records may have been lost due to fire while in government control, additional efforts are required to assist him in substantiating his claim. The Court has also held that a remand by the Board confers on a claimant, as a matter of law, the right to compliance with the remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the veteran submitted his claim for an increased back disability rating in August 2001. Subsequently, the criteria for intervertebral disc disease, 38 C.F.R. § 4.71a, Diagnostic Code 5293, were revised effective September 23, 2002. See 67 Fed. Reg. 54,345 (Aug. 22, 2002). The remaining spinal regulations were amended and the diagnostic codes renumbered in September 2003. See 68 Fed. Reg. 51,454 (Aug. 27, 2003). Where the law or regulations governing a claim are changed while the claim is pending the version most favorable to the claimant applies (from the effective date of the change), absent congressional intent to the contrary. The Court has also held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). A review of the medical evidence shows that an April 2007 VA orthopedic examination noted the veteran's sensory functions were markedly diminished in the lower extremities, but that straight leg raise tests were negative. There were, however, radicular symptoms of moderate discomfort in the lower back and marked bilateral hamstring tenderness and tightness. Deep tendon reflexes were hyperreflexic, but no pathological reflexes were noted. The examiner noted there were multiple balance problems in the lower extremities, but that these were mainly due to diabetic peripheral neuropathy, old cardiovascular accident, and peripheral vascular disease. There was generalized weakness in terms of loss of endurance, but the extent attributable to the lower back disorder could not be determined because the veteran's other medical problems were severe enough to cause these limitations. The examiner noted the veteran had been previously deemed unemployable, but did not indicate if he was unemployable as a result of his service-connected disability. A December 2002 VA examination revealed no apparent sensory deficit in the lower extremity dermatomes, but noted decreased light touch sensation secondary to vascular disease. There was back pain and discomfort on bilateral straight leg raise testing at 45 degrees. The examiner noted that due to multiple medical problems, specifically peripheral vascular disease combined with a back disorder, the veteran was unable to do a productive job. An April 1997 VA neurology examination report noted magnetic resonance imaging (MRI) revealed a very broad, shallow, posterior bulge at L4-5 with mild bilateral nerve root stenosis, but no significant spinal stenosis. The examiner found the veteran's numbness in the feet was due to diabetes and was not due to his back disability. In light of the inconsistent medical opinions concerning the etiology of neurological symptomatology and lack of specificity in the opinions as to employability, additional development is required prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should take appropriate action to search for alternative service treatment records. As many requests as are necessary to obtain any relevant records must be taken, unless further efforts would be futile. All attempts to procure records should be documented in the file. If identified records cannot be obtained, a notation to that effect should be inserted in the file. The veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 2. The veteran should be provided any additional VCAA notice required for his increased rating claim as result of the decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). This includes notification (1) that to substantiate his claim he must provide, or ask VA 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, (2) generally, of the diagnostic code criteria necessary (in this case codes number 5292 prior to September 23, 2002, and thereafter codes number 5237, 5243, and 8520) 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 of that worsening has on his employment and daily life, (3) that if an increase in disability is 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 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) of examples of the types of medical and lay evidence that he may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation (such as 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). 3. The veteran should be scheduled for a VA examination by an appropriate physician for an opinion as to the current nature and extent of his service- connected back disability. The physician should identify all present manifestations of the service-connected disability including any evidence of a related neurological disability. Complete range of motion and X-ray studies must be provided with discussion as to any additional limitation of motion due to pain, weakness, fatigability, incoordination or pain on movement of a joint, including use during flare-ups. The opinion should address whether the veteran has experienced any incapacitating episodes due to intervertebral disc disease. If the physician finds there are persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc and little intermittent relief an opinion, to the extent possible, should be provided as to the date of onset. The physician should also provide a full description of the effects of the service-connected disability (exclusive of any nonservice-connected disabilities) upon the veteran's employment and daily life. Particular emphasis should be placed upon any manifest limitation of activity alleged by the veteran. Prior to the examination, the claims folder must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 5. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. Different levels of service-connected disability compensation should be considered in accordance with the decision in Hart v. Mansfield, 21 Vet. App. 505 (2007), but any change resulting in the reduction or discontinuance of any current compensation payments must include consideration of the requirements of 38 C.F.R. § 3.105(e). If any benefit sought remains denied, the veteran and his representative should be furnished a supplemental statement of the case and be afforded the 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). _________________________________________________ RENÉE M. PELLETIER 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).