Citation Nr: 0812269 Decision Date: 04/14/08 Archive Date: 05/01/08 DOCKET NO. 05-28 366A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for degenerative arthritis of the lumbar spine, mechanical low back pain, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. M. Wagman, Associate Counsel INTRODUCTION The veteran had active military service from September 1971 to June 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the St. Petersburg Regional Office (RO) of the Department of Veterans Affairs (VA) that increased the veteran's evaluation for degenerative arthritis of the lumbar spine, mechanical back syndrome to 20 percent disabling. The veteran filed a timely Notice of Disagreement (NOD) with the evaluation contending that it does not accurately reflect the severity of his disability. The Board notes that also in the veteran's September 2005 Form 9 Appeal to the Board, the veteran appears to raise two new claims for entitlement to service connection. In his statement, he claims that he is a Vietnam Veteran who has been diagnosed with Diabetes Mellitus, Type II. He also claims that he has been diagnosed with sleep apnea. These claims are REFERRED to the RO for further action. 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 A determination has been made that additional development is necessary in the current appeal. Accordingly, further appellate consideration will be deferred and this case is REMANDED to the AMC/RO for action as described below. The duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case. See 38 U.S.C.A. § 5103A. Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill its statutory duty to assist the appellant to develop the facts pertinent to the claim. Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). First, in two separate communications with VA dated in March and June 2005, the veteran identified treatment for his back condition by Drs. A.V. and D.A. in Hialeah, Florida. The veteran reiterated these requests in his September 2005 Appeal to the Board. In June 2005, he submitted a signed Authorization and Consent to Release Information to the Department of Veterans Affairs and requested it obtain treatment records on his behalf from August 2004 to the present. While the veteran submitted a radiological report (MRI) dated in January 2005, that was apparently requested by Drs. A.V. and D.A. from a private radiologist, the record does not indicate the RO made any attempt to obtain the treatment records identified, or that any negative response was received from the identified doctors indicating no records were available regarding the veteran. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d) (2007). On Remand the RO should make arrangements to obtain the records of treatment of the veteran from Drs. A.V. and D.A.. If any such records are not available, a negative response should be obtained and included with the veteran's claims file. Additionally, in the July 2004 VA Examination report, the examining physician stated that he felt this veteran was probably a candidate for an MRI of the lumbar spine provided the X-rays of the lumbar spine indicate that it should be done. The radiological report of the lumbar spine associated with the VA examination noted mild anterior wedging of the T12 vertebral body of unknown chronicity and state "clinical correlation is recommended." However, no further clinical correlation is present in the record. The study further concluded mild degenerative changes of the lumbosacral spine as described. No additional mention was made regarding obtaining an MRI study. As mentioned earlier, on his own accord, the veteran obtained an MRI study of the spine in January 2005 and submitted the evidence to the Board in support of his claim. This evidence shows that there may be significant pathology of the thoracolumbar spine, possibly consistent with intervertebral disc syndrome. Such evidence should be considered in light of any evidence that may be obtained from Drs. A.V. and D.A. in evaluating the veteran's claim for an increased disability rating. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should specifically request the complete medical records from doctors identified by the veteran as treating him for back pain from August 2004 to the present in Hialeah, Florida (Drs. A.V. and D.A.) and associate these records with the claims file. If any such records are not available, a negative response should be obtained and included with the veteran's claims file. 2. The RO/AMC should then consider any new evidence obtained, or lack thereof, and take any appropriate procedural or evidentiary development deemed necessary, to include the scheduling of a VA examination. 3. Readjudicate the veteran's claims for an increased disability rating. If the benefits sought on appeal remain denied, provide the veteran and his representative with a Supplemental Statement of the Case (SSOC). The SSOC should contain notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The veteran 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. 2007). _________________________________________________ JONATHAN B. KRAMER Acting 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) (2006 ).