BVA Case 06-1930: Back

Because the Board failed to provide adequate reasons or bases for its denial of a disability rating in excess of 40% for degenerative joint disease of the lumbar spine and sacroiliac joints, the Court will remand that matter for readjudication consistent with this decision.

Gomez's right elbow and left forefoot conditions and hearing loss, as well as entitlement to service connection for the 17 conditions noted above, are not clearly erroneous, the Court will affirm those portions of the March 2006 Board decision.

This letter informed him of the evidence necessary to establish entitlement to service connection, the necessity of submitting new and material evidence to reopen his previously disallowed claim for VA benefits for a positive tuberculous test and ulcers, and the evidence necessary to establish entitlement to higher disability ratings.

First, he argues that the Board erred by determining that the Secretary satisfied his duty to notify, specifically by failing to adequately notify him pursuant to the VCAA and failing to issue adequate Statements of the Case and Supplement Statements of the Case.

In this regard, he argues that the Board erred in finding that the Secretary fulfilled his duty to assist because the Secretary failed to release his entire claims file, as he had requested.

Next, he argues that the Board erred in denying entitlement to service connection for the 17 conditions noted above.

Third, he argues that the Board erred in failing to award him a higher disability rating for his service- connected lumbar spine condition, which he states is secondary to his degenerative joint and disc disease, lumbar spine and sacroiliac joints, with right sacral fracture; right elbow/ forearm degenerative joint disease; left forefoot degenerative joint disease.

He also argues that the Board erred in failing to award him entitlement to an extraschedular rating for his service-connected lumbar spine condition, specifically by finding that he did not suffer any frequent periods of hospitalization as a result of this condition.