Citation Nr: 1309536 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 08-03 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for penetrating gunshot wound residuals of the left lumbar region muscle group XX with lumbar degenerative disc disease, currently rated 20 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from August 1966 to March 1969. The Veteran's claims folder has been rebuilt. This matter comes to the Board of Veterans' Appeals (Board) from a June 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to a disability rating in excess of 10 percent for residuals, penetrating gunshot wound, left lumbar region, scar, healed, adherent to and mild loss of muscle group XX. The Veteran perfected an appeal with regard to the denial of an increased rating. In an October 2012 rating decision, the RO assigned a 20 percent disability rating to penetrating gunshot wound residuals of the left lumbar region muscle group XX with lumbar degenerative disc disease. Although an increased rating has been granted, the issue remains in appellate status, as the maximum schedular rating has not been assigned. AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The June 2007 rating decision reflects that on January 23, 2006, an increased rating claim was received from the Veteran. The rating decision references the following evidence: July 31, 2006 statement from the Veteran; treatment records from Sunset Chiropractic dated from December 12, 2005 to May 16, 2006; University of New Mexico Health Sciences Center dated from May 18, 2004 to December 20, 2004; a November 13, 2006 VA examination; a March 7, 2006 VA letter sent to the Veteran; and, service treatment records. A July 9, 2010 VA Report of Contact reflects that the Veteran's claims file was lost in transit. The Veteran was notified that his file was lost via July 2010 VA correspondence and it was requested that he help in locating and/or rebuilding the file. Subsequent notice was issued to the Veteran in February 2011. VA correspondence dated in January 2012 reflects that the Veteran's file was reviewed and that he had an appeal pending for residuals, penetrating gunshot wound, left lumbar region, scar, healed, adherent to and mild loss of muscle group XX, rated 10 percent disabling, and, right leg numbness. He was requested to complete a new Form 9, substantive appeal, to continue his appeal. In February 2012, the Veteran submitted a VA Form 9 pertaining to these issues. In the October 2012 rating decision, the RO granted entitlement to service connection for peripheral neuropathy, right lower extremity, assigning a 10 percent disability rating, effective February 23, 2012. The grant of service connection for peripheral neuropathy, right lower extremity, constituted a full award of the benefit sought on appeal as to that issue. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). To date, neither the Veteran nor his representative submitted a jurisdiction-conferring notice of disagreement as to the down-stream elements of effective date or compensation level within the applicable time period. Thus, those issues are not currently in appellate status. Id. With regard to the increased rating issue pertaining to residuals, penetrating gunshot wound, left lumbar region, the Board notes that in light of the claims folder being rebuilt, the evidence of record is incomplete, and there is no indication that the RO made sufficient attempts to obtain all of the outstanding evidence. The Veteran's January 23, 2006 claim and July 31, 2006 statement are not of record and attempts should be made to obtain such documents from the RO, the Veteran, or the Veteran's representative. The Veteran's treatment records from Sunset Chiropractic dated from December 12, 2005 to May 16, 2006, are not of record and after obtaining an appropriate release the records should be requested from the medical provider. Updated treatment records should also be obtained from this provider. The March 7, 2006 VA letter sent to the Veteran is not of record and attempts should be made to obtain such document from the RO, the Veteran, or the Veteran's representative. The October 2012 supplemental statement of the case references a June 2007 notice of disagreement and a February 14, 2009 supplemental statement of the case which are not of record. An attempt should be made to obtain these documents from the RO, the Veteran, or the Veteran's representative. An attempt should be made to obtain the statement of the case pertaining to this issue from the RO, the Veteran, or the Veteran's representative. Updated VA outpatient treatment records from June 21, 2012, should be associated with the claims folder. Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, the Court has held that with an increased rating claim, a Veteran 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. Further, such notice must also provide examples of the types of medical and lay evidence that a 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. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom, Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In this case, the Veteran purportedly received VCAA notice in March 2006 and in January 2012 the Veteran was issued VCAA notice. However, the letter did not contain all of the information required by the Court's decision in Vazquez-Flores, and adequate notice must be provided prior to the Board's further consideration of this matter. Accordingly, the case is REMANDED for the following actions: 1. The Veteran should be provided a VCAA notice letter that provides examples of the types of medical and lay evidence that he may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, including 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 disabilities or exceptional circumstances relating to the disability at issue. 2. An attempt should be made to obtain the following documents from the RO, the Veteran, and/or the Veteran's representative: a) January 23, 2006 increased rating claim; b) July 31, 2006 statement from the Veteran; c) March 7, 2006 VA letter sent to the Veteran; d) June 2007 notice of disagreement; e) Statement of the case; f) February 14, 2009 supplemental statement of the case All reasonable attempts should be made to obtain such documents and all efforts to obtain these records must be associated with the claims folder. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 3. Upon obtaining an appropriate release, the Veteran's treatment records from Sunset Chiropractic dated from December 12, 2005. should be associated with the claims file or Virtual VA. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 4. Associate with the claims folder or Virtual VA outpatient treatment records from the Albuquerque and Big Spring VAMCs from July 2012. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's increased rating claim should be readjudicated based on the entirety of the evidence. If the full benefit sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran and his representative have the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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. 2012). _________________________________________________ ERIC S. LEBOFF 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) (2012).