Citation Nr: 1320547 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-47 546 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased disability rating for lumbar traumatic degenerative changes with arthrosis and annular bulge L4-5 with left lower sciatic radiculopathy, currently rated as 20 percent disabling. 2. Whether new and material evidence has been submitted to reopen the claim for service connection for degenerative joint disease of the left knee to include as due to the service connected lumbar spine disability. 3. Entitlement to service connection for left hip bursitis, to include as due to the service connected lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran had active service from July 1980 to April 1986. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions of January and September 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran was scheduled for a videoconference hearing in November 2011, but she failed to appear. She filed a motion to reschedule the hearing in April 2012 and in October 2012, the motion was denied. The Board has reviewed the Veteran's Virtual VA file and has considered the relevant records contained therein. 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 Veteran seeks an increased disability rating for her service connected lumbar spine disability, and entitlement to service connection for a left knee disability and a hip disability, both to include as due to the service connected lumbar spine disability. Initially, the Board notes that a review of the claim file, to include the Veteran's Virtual VA file, reveals that additional VA outpatient treatment records relevant to the present claims have been associated with the claim file after the most recent supplemental statement of the case (SSOC) of November 2010. However, the Agency of Original Jurisdiction (AOJ) has not issued an SSOC subsequent to the obtaining of the records, and there is no indication in the record that the Veteran waived initial consideration of this evidence by the AOJ. Therefore, an SSOC must be issued which takes into consideration the evidence submitted since the September 2010 SSOC. See 38 C.F.R. §§ 19.31, 19.37 (2012). Regarding the claim for service connection for a hip disability, a rating decision of September 2009 denied service connection for a left hip disability. In November 2009, the Veteran filed a Notice of Disagreement regarding the issue of entitlement to service connection for a left hip disability. A statement of the case has not been issued. Under these circumstances, a statement of the case must be issued. See Manlicon v. West, 12 Vet. App. 238 (1999). With regards to the issue of the disability rating for the lumbar spine disability, the Veteran has asserted, through her representative, that the disability has worsened since the most recent VA examination of December 2009. Furthermore, VA treatment records dated in July 2010 note the Veteran has severe arthritis of the entire spine. Moreover, VA treatment records dated in 2012 show repeated complaints of and treatment for constant back pain. As the evidence suggests that the Veteran's lumbar spine disability has worsened since the most recent VA examination, a new examination should be scheduled in order to determine the current nature and severity of the lumbar spine disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). With regards to the issue of entitlement to service connection for a knee disability, the Board notes that the issue was previously denied in a rating decision of November 2005. The Veteran did not appeal that decision and it became final. Therefore, the issue currently before the Board is whether new and material evidence has been submitted to reopen the claim for service connection for a left knee disability. The RO, however, has developed the issue as an initial claim. In the context of a claim to reopen, VCAA notice must include an explanation of 1) the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought; and 2) what constitutes new and material evidence to reopen the claim as determined by the evidence of record at the time of the previous final denial. See Kent v. Nicholson, 20 Vet. App. 1, (2006). The Court further explained that a notice letter must describe what evidence would be necessary to substantiate the element or elements required to establish the underlying claim that were found insufficient in the previous denial. The Veteran was provided VCAA notice via a letter of July 2008. However, this letter did not comply with the requirements under Kent, as it only provided the Veteran with notice as to what evidence was needed to show entitlement to service connection. The Veteran was not informed of the prior denial, the reason for the prior denial and what evidence is needed to reopen the claim. Proper notice must be provided on remand. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should provide the Veteran a new notice letter with regards to the issue of service connection for a left knee disability, required in claims to reopen that is Kent-compliant. The notice must accurately state the reason for the prior denial and specifically and precisely addressing the element(s) required to establish service connection that was/were found insufficient in the previous denial of the claim, as required by Kent (cited above). 2. The RO/AMC should schedule the Veteran for an appropriate VA examination to determine the current level of severity of the lumbar spine disability. The claim folder, both paper and Virtual, should be made available to the examiner. The examiner must state in the examination report that a review of the claim file has been conducted. All indicated studies, including x-rays and range of motion studies in degrees, should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty, then the examiner should so indicate. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if the Veteran describes flare-ups). The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible to do so to any degree of medical certainty, then the examiner should so indicate. 3. After completing the requested actions, and any additional notification and development deemed warranted, readjudicate the Veteran's claims, to include, if applicable, whether he satisfied the net worth and annual income requirements for pension purposes at any time during the appeal period. If the decision with respect to any of the claims remains adverse to the Veteran, he and his representative should be furnished a Supplemental Statement of the Case, and afforded an appropriate period of time within which to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. 4. A statement of the case as to the issue of entitlement to service connection for a left hip disability should be issued to the Veteran. Only if the Veteran perfects an appeal should the claim be certified to the Board and after any necessary development has been completed. 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). _________________________________________________ DAVID L. WIGHT 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).