Citation Nr: 1342349 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 07-06 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to specially adapted housing. 2. Entitlement to special home adaptation grant. 3. Entitlement to an effective date prior to August 11, 2010, for service connection for limited extension of the left knee and for limited extension of the right knee. 4. Entitlement to an initial compensable rating for limited extension of the left knee. 5. Entitlement to an initial compensable rating for limited extension of the right knee. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1986 to July 1989. This case comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a May 2006 rating decision, the RO, inter alia, denied service connection for left ear hearing loss, an eye disorder, facial numbness, and numbness of the legs. In a January 2007 rating decision, the RO denied specially adapted housing and a special home adaptation grant. During the pendency of the claims listed in the paragraph above, the Veteran had also perfected an appeal for claims of service connection for bilateral knee and ankle disabilities. However, in an August 2009 rating decision, the RO granted service connection for arthritic changes in the bilateral knees and ankles, with each joint being evaluated as 10 percent disabling. The Board notes that the bilateral knee arthritis was evaluated under Diagnostic Code 5003-5260 for arthritis with limitation of flexion of the leg while the bilateral ankle arthritis was evaluated under Diagnostic Code 5271for limited motion of the ankle. As the grant of service connection represents a full grant of the benefits sought, those claims for service connection are no longer before the Board. In a March 2010 decision, the Board denied service connection for an eye disorder, a disability manifested by facial numbness, and a disability manifested by numbness of the legs bilaterally. In addition, the Board remanded the claims of service connection for left ear hearing loss, entitlement to specially adapted housing, and entitlement to special home adaptation grant. In a November 2012 rating decision, service connection was granted for hearing loss of the left ear, effective October 6, 2005, which was then combined for rating purposes with the already service-connected hearing loss of the right ear (so that now his disability is characterized as bilateral hearing loss), and assigned a noncompensable disability rating. In addition, service connection was granted for limited extension of the left and right knees (separate from the previous service connection for arthritis of the bilateral knees, which was evaluated on the basis of limitation of extension). Each knee was assigned an initial noncompensable disability rating all effective August 11, 2010. Thereafter, the Veteran's attorney filed a Notice of Disagreement to both the initial noncompensable disability ratings assigned for each knee and the effective date of assigned. The Veteran's attorney did not, however, disagree with the assignment of either the noncompensable disability rating or effective date for bilateral hearing loss; hence, that issue is not on appeal to the Board. In August 2013, the RO issued a Statement of the Case as to the issues of compensable disability ratings for limited extension of the bilateral knees and an earlier effective date for the grant of service connection for limited extension of the bilateral knees. Thereafter, the Veteran's appeal was timely perfected by filing of a VA Form 9 (Appeal to the Board of Veterans' Appeals). In addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's appeal, a review of which does not reveal any additional documents pertinent to the present appeal with the exception of VA electronic treatment (CAPRI) records which were entered into Virtual VA on November 14, 2012. These were considered by the RO in the November 20, 2012, Supplemental Statement of the Case addressing entitlement to specially adapted housing and entitlement to special home adaptation grant; and were also considered in the August 2012 Statement of the Case addressing the effective dates for service connection for limited motion of each knee and entitlement to initial compensable ratings for limited extension of each knee. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND The Board finds that remand is warranted for due process reasons as well as additional development on the claims on appeal The Board notes that the Veteran's claims file consists of four volumes. The case was remanded in March 2010 to afford the Veteran a VA examination as to his claims for special adaptive housing and special house adaptation grant. At that time, according to VA's computerized inventory program (VACOLS), the Board had four volumes. The requested examination was conducted in August 2010. The report of that examination noted, however, that only three (3) volumes of the Veteran's claims files were available for review. Consequently, it appears that sometime between when the Board had the Veteran's claims file in March 2010 and when it was forwarded for the VA examination in August 2010, a volume was lost, which is noted to be Volume 2. In a letter contained in Volume 1, dated April 26, 2004, the Veteran's attorney requested copies of the Veteran's service treatment records and a copy of his claim file. Attached to an RO letter dated June 28, 2004, the RO forwarded those records to the attorney. Contained in Volume 3 is a May 2006 Notice of Disagreement to the May 2006 rating decision, which was the subject of the Veteran's initially appealed service connection claims that were before the Board in March 2010. In that Notice of Disagreement, the Veteran's attorney requested a copy of the Veteran's claim file to include records since the date of the last request. The RO sent a letter dated July 13, 2006, in response to that May 2006 request for records by the attorney, in which the RO stated that the attorney was being sent "a copy of the veteran's claim file and service medical records." An August 25, 2010, deferred rating decision noted that Volume 2 of the Veteran four volume claims file was missing. Volume 2 was to be located and associated with the remaining three volumes of the Veteran's claims file. The November 2012 rating decision (which granted service connection for hearing loss of the left ear, and limited extension of the left and right knees) also noted that Volume 2 was missing and needed to be located prior to certification of the appeal to the Board. It was further noted that a search had been in effect since 2011. A June 27, 2013, RO letter to the Veteran's attorney acknowledged receipt of the attorney's letter (date January 30, 2013) requesting information accumulated in the Veteran's claims files, including Virtual VA, rating decisions and all other documents, since the RO's compliance with the attorney's last such request, and enclosed all such documents. In the VA Form 8, Certification of Appeal, dated October 28, 2013, it was stated that Volume 2 was missing and all efforts at the RO level had been exhausted to locate the file. Under these circumstances, it appears that a copy of the entire Volume 2 of the Veteran's claims files was previously sent to the Veteran's attorney. Thus, even though the RO has indicated that all efforts to locate Volume 2 have been exhausted, it appears that it is possible that Volume 2 may be reconstructed if the Veteran's attorney is contacted and requested to provide those records, or copies of those records, to the RO in order to rebuild Volume 2. See Marciniak v. Brown, 10 Vet. App. 198, 199-200 (1997) in which the Court noted with approval the Board's citation to O'Hare v. Derwinski, 1 Vet. App. 365, 376 (1991) "for the proposition that a heightened duty existed to explain thoroughly the reasons and bases for its decision, especially in light of the twice-lost claims folder." Furthermore, since the August 2010 VA joints examination was conducted without the benefit for having Volume 2 available, if the steps taken by the RO result in the reconstruction of Volume 2 or if Volume 2 is located, the Veteran's claims file (including all four volumes) should be made forwarded to the examiner who conducted the August 2010 VA joints examination and provided a medical opinion as to whether the Veteran met the conditions for eligibility for special adaptive housing or special house adaptation grant so that he may review the Veteran's entire claims file and to provide an addendum to his August 2010 report and medical opinion to include whether such additional review changes his previously proffered medical opinion. Also, the Veteran's attorney has requested notification pursuant to the Veterans Claims Assistance Act of 2000 (VCAA) with respect to the claims for earlier effective dates for service connection for limited motion of each knee and as to compensable ratings for those disorders. The November 2012 rating decision which granted service connection for limited extension of each knee, and assigned initial noncompensable ratings for each, set the effective dates as of the date of VA examination on August 11, 2010. The November 2012 rating decision observed that no formal claim had been filed for service connection for these disorders. As to this, VA has duties to notify and assist the Veteran in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 U.S.C.A. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain and assist her in obtaining; and (3) that she is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a downstream disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. at 486. After an initial grant of a claim for service connection have been substantiated, additional VCAA notice concerning issues such as challenges to initial disability ratings and the effective dates assigned for grants of service connection is not required because the initial intended purpose of the notice has been served. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). However, these cases involved circumstances in which VCAA notice had been given as to formal claims for service connection. Such is not the case here. Thus, the Veteran and his attorney must be given appropriate VCAA notice as to the claims for earlier effective dates for service connection and for compensable ratings for the service-connected limitation of motion of each knee, to include notice compliant with the holding in Vasquez-Flores v. Peake, 22 Vet. App. 37 (2008). Additionally, the attorney's vague recitation of case law in the November 2012 Notice of Disagreement is inferred to contend that the prior examination of the Veteran's bilateral knees upon which the noncompensable disability ratings for limited extension was based was inadequate. Thus, the Veteran should be afforded an new examination to determine the current severity of the service connected bilateral knee disabilities at issue. Also, the Veteran's attorney has cited numerous Court cases addressing VA's duties and responsibilities. However, as to the claims for earlier effective dates for service connection for the limited extension of each knee, the attorney has not set forth any rationale for why an earlier effective date should be granted or what the putative effective dates should be. Thus, he should be requested to set forth such contentions so as to allow VA to address them. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran and his attorney with VCAA notice as to the claims for an earlier effective date for the grant of service connection for limited extension of the bilateral knees and as to seeking compensable ratings for those disorders, to include notice compliant with the holding in Vasquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. Request the attorney to submit to the RO the specific contentions as why an earlier effective date for service connection for limited extension of each knee is warranted and what the effective date should be so as to allow VA to be able to fairly and informly adjudicate the Veteran's claim. 3. Contact the Veteran and his attorney and provide them with notice that Volume 2 of the claim folder has been lost and of the steps taken to locate that folder. Also request that the Veteran and his attorney provide the RO with copies of all records in their possession which were previously sent to either or both in response to prior requests for copies of the claims file. In particular, it should be requested that copies of all records sent to the Veteran's attorney as attached to the July 13, 2006, letter which the RO sent to the attorney (with the attachments being "a copy of the veteran's claim file and service medical records"). The RO should take any other steps or actions which may be in order as to any response by the Veteran or his attorney in an effort to ensure a complete record on appeal. 4. If Volume 2 of the claims file is located or reconstructed, then forward the Veteran's complete claims file (all four volumes) to the VA examiner who conducted the August 2010 VA joints examiner at the Columbia VA Medical Center conducted for purposes of determining the Veteran's eligibility for special adaptive housing and special home adaptation grant. The examiner should review the entire record set forth in all four volumes of the claims file and should submit an addendum indicating such review and whether there is any change in his medical opinion proffered in August 2010. 5. The Veteran should be afforded a VA orthopedic examination to evaluate the current nature and severity of the service-connected disabilities of the knees herein at issue. In addition to addressing the range of motion and structural integrity of the knees, the examiner is requested to specifically address whether there is functional loss due to weakness, excess fatigability, incoordination, pain or pain on movement. DeLuca v. Brown, 8 Vet. App. 202 (1995) (medical examination must comply with requirements of 38 C.F.R. §§ 4.40, 4.45 and 4.59 which, in addition to the schedular criteria, require the examiner to express opinion on whether pain could significantly limit functional ability on motion during use with acute flare-ups of disability and in terms of the degree of additional range-of-motion loss due to weakened movement, excess fatigability, or incoordination). The claims file and a copy of this remand must be made available to the examiner. 6. Thereafter, the Veteran's claims should be readjudicated. If such action does not resolve the claims, a Supplemental Statement of the Case should be issued to the Veteran and his attorney. An appropriate period of time should be allowed for response. Thereafter, these claims should be returned to this Board for further appellate review, if in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ SARAMAE KREITLOW Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).