Citation Nr: 1315376 Decision Date: 05/09/13 Archive Date: 05/15/13 DOCKET NO. 96-44 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an increased evaluation for service-connected traumatic osteoarthritis of the cervical spine, currently evaluated as 30 percent disabling. ATTORNEY FOR THE BOARD A. Barone, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1969 to July 1971. This matter has been before the Board of Veterans' Appeals (BVA or Board) on several occasions, with different sets of the issues on appeal appearing and reappearing before the Board at different times. The single issue remaining on appeal arises from a December 1997 decision (sent to the Veteran in January 1998) of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. However, the RO in Reno, Nevada currently has jurisdiction over the Veteran's claim. In June 2002, the Board issued two separate decisions relative to claims associated with this appeal at that time. The remote procedural history of this case is found therein and will not be repeated in its entirety here. The appellant sought review by the United States Court of Appeals for Veterans Claims (the Court). Pursuant to a joint motion for remand filed by the appellant and VA, the Court in April 2004 vacated and remanded the issue currently remaining on appeal. The issue remaining on appeal was remanded by the Board in April 2005. The issue was next addressed by the Board in October 2010, when the issue was remanded (and other issues on appeal were granted). The Veteran has previously been represented in this case by an attorney. However, correspondence received by VA in April 2013 clearly indicates that the attorney has withdrawn from representing the Veteran and that Veteran has expressly indicated a desire to proceed without a representative. In accordance with the Veteran's instructions, the Board recognizes that the Veteran is now advancing this appeal pro se. 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 Board's October 2010 remand discussed that this appeal dates back to a period for which former versions of rating criteria for evaluating disabilities of the cervical spine were in effect (prior to revisions in 2002 and 2003). The Board further notes that prior RO-level adjudication of this issue has made confusing and incorrect statements to the Veteran concerning the applicability of the former rating criteria. For instance, the September 2009 supplemental statement of the case stated that "[t]he 30 percent evaluation of your cervical spine condition was assigned under rating criteria that is [sic] no longer in effect. In order for an increased evaluation to be allowed, your cervical spine condition must meet the criteria for an evaluation of 40 percent under the new rating criteria." This statement is incorrect; the former criteria are applicable in this case (in addition to the new criteria for the period from the effective dates of the revisions). The Court held in DeSousa v. Gober that the law "precludes an effective date earlier than the effective date of the liberalizing . . . regulation," but VA must, nonetheless, still adjudicate whether a claimant "would receive a more favorable outcome, i.e., something more than a denial of benefits, under the prior law and regulation." DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Accordingly, VA has the duty to adjudicate the Veteran's claims under the old regulation for any period prior to the effective date of the new diagnostic codes, as well as under the new diagnostic code for the period beginning on the effective date of the new provisions. Wanner v. Principi, 17 Vet. App. 4, 9 (2003). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. The Board may not proceed with a decision in this case prior to the RO/AMC rating the cervical spine disability under both the old and new versions of the applicable regulations through the pertinent periods on appeal. At this point, the RO has not addressed or considered the question of whether any higher rating for cervical spine disability may be warranted on the basis of the applicable former rating criteria in any readjudication in many years (indeed, for the majority of the lengthy period on appeal). When the Board addresses questions or issues that the RO did not previously consider, "the Board must secure a waiver from a claimant or otherwise determine that there would be no prejudice to the claimant by proceeding to adjudicate the question or issue." See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Similarly, where the Board considers law not previously considered by the RO, the Board is required to notify the claimant and indicate that consideration of this law may result in a decision adverse to the claimant. See 38 C.F.R. § 20.903(b) (requiring Board to "notify the appellant and his or her representative" of its intent to consider a law not considered by RO, where consideration "could result in denial of the appeal"). See McBurney v. Shinseki, 23 Vet. App. 136, 138 (2009). The Board is unable to conclude that there is an absence of prejudice to the Veteran in the RO's failure to consider the applicable older rating criteria in adjudicating this issue. The former criteria for cervical spine disability and intervertebral disc syndrome allow for ratings in excess of 30 percent if the intervertebral disc syndrome is at least "severe" with "recurring attacks" and "intermittent relief" (with further higher rating assignments for greater severity). Those criteria are more favorable to the Veteran's claim than the newer version requiring ankylosis or "incapacitating episodes" of significant duration for assignment of any rating in excess of 30 percent. Medical records including an August 2004 medical treatment report and the August 2009 VA examination report show that the Veteran's cervical spine disability has included disc disease for many years; other medical evidence shows that X-ray imaging indicated disc space narrowing at least as early as 1988. Documentation added to the claims-file after the Board's most recent prior review of this case shows, as discussed in the newest September 2011 VA examination report, that the Veteran has suffered additional cervical spine injury in a May 2010 motor vehicle accident involving fracture of a cervical vertebrae. The evidence establishes, however, that the Veteran had some manner of disc disease of the cervical spine for many years prior to the recent motor vehicle accident. In accordance with the directives of the October 2010 remand, the RO's January 2011 letter provided the Veteran with VCAA notice that includes notice of the old rating criteria that are applicable in this case. However, it appears that the RO did not actually cite, apply, consider, or acknowledge the applicability of the former rating criteria in readjudication of this issue in the last many years (a period constituting the majority of the lengthy period on appeal in this case). The period on appeal is of a significant length and medical evidence shows that the Veteran's cervical spine disability includes disc disease (both before and after the recent motor vehicle accident); the RO has not considered or addressed the significant matter of application of the former (more favorable) rating criteria throughout the period on appeal. Thus, appellate review of this claim cannot proceed at this time and the issue must be remanded for RO-level adjudication which considers both the current and former (more favorable) rating criteria and properly applies them to the Veteran's appeal. The Board observes that the September 2011 VA examination report does not draw any distinction between service-connected disability and nonservice-connected disability of the cervical spine. The Board observes that the September 2011 VA examination report is presented in a DBQ-questionnaire format that addresses only the more recent rating criteria and contains no additional characterization clarifying the severity of the disability to inform application of the former rating criteria. The fact that the Veteran has not had incapacitating episodes of intervertebral disc syndrome does not inform a determination of whether the disc syndrome is "severe" under the old criteria. During the processing of this remand, the RO will have the opportunity to determine whether any additional development or clarification is necessary to make the required determinations applying the applicable former rating criteria for the Veteran's service-connected cervical spine disability. Accordingly, the case is REMANDED for the following action: The RO/AMC should then review the Veteran's claim of entitlement to an increased rating for service-connected traumatic osteoarthritis of the cervical spine. The RO must specifically address the applicability of the applicable former criteria for cervical spine disability and intervertebral disc syndrome throughout the entirety of the period on appeal. Any additional development necessary for informed application of the former criteria and to resolve any questions concerning the significance of the recent May 2010 injury to the cervical spine should also be accomplished (including any clarification of prior VA examination reports or a new VA examination). If any benefit sought on appeal remains denied, the RO should furnish the Veteran and his representative (if any) with an appropriate supplemental statement of the case. The case should be returned to the Board after the Veteran is afforded an opportunity to respond. 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. 2012). _________________________________________________ ALAN S. PEEVY 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).