Citation Nr: 1111005 Decision Date: 03/21/11 Archive Date: 04/05/11 DOCKET NO. 07-16 403 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for thoracolumbar spine degenerative disc disease and strain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Ganz, Associate Counsel INTRODUCTION The Veteran had active military service from July 1999 to September 2005. This matter comes to the Board of Veterans' Appeals (Board) from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted the Veteran service connection for thoracolumbar spine degenerative disc disease (DDD) and strain, with a 10 percent rating effective September 12, 2005. The RO in Buffalo, New York, currently retains jurisdiction of the Veteran's claim file. In February 2009, the Board received additional medical evidence from the Veteran, and in January 2011, the Veteran's representative submitted a waiver of initial review of this evidence by the agency of original jurisdiction. See 38 C.F.R. § 20.1304. 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 evaluation in excess of 10 percent for thoracolumbar spine DDD and strain. VA's duty to assist a claimant includes obtaining medical records and providing a medical examination or obtaining a medical opinion when necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). The last VA examination conducted to assess the severity of the Veteran's thoracolumbar spine DDD and strain was in March 2007. Subsequently, in November 2008, he had back surgery for L4-L5 L5-S1 disc degeneration with discogenic pain. The Veteran was granted a temporary total evaluation by the RO for this surgery and subsequent convalescence in December 2008, which indicates that the November 2008 surgery was for his service-connected thoracolumbar spine DDD and strain disability. Given that the Veteran had surgery for his service connected thoracolumbar spine DDD and strain disability since his last VA examination, a new VA medical examination is needed to assess the current severity of his service-connected disability prior to appellate review. See 38 C.F.R. § 3.159(c)(4). The appellant is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158 and 3.65. Moreover, the record indicates that the Veteran has received continuous treatment for this disability at the VA. However, the most recent VA medical records associated with the claims file by the RO are from August 2008. As VA medical records are constructively of record and must be obtained, the RO should obtain VA treatment records from August 2008 to the present. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Appropriate action should be taken to obtain copies of all VA treatment records from August 2008 to the present. 2. Schedule the Veteran for a VA medical examination to assess the current severity of his service-connected thoracolumbar spine DDD and strain disability. All necessary and indicated testing, including range of motion testing, should be performed. The examiner is also asked to comment on whether the Veteran's service-connected thoracolumbar spine DDD and strain disability manifests any neurological abnormalities. The examiner is referred to a February 2007 VA treatment record indicating that the Veteran had back pain and sciatic symptoms in his right leg. The examiner is also requested to specify whether the Veteran's degenerative disc disease has caused any incapacitating episodes, defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician, and if so, specify the duration of such episodes in the past year. In accordance with the guidance in DeLuca v. Brown, 8 Vet.App. 202 (1995), the examination report should address any weakened movement of the lumbar spine, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and provide an opinion as to how these factors result in any limitation of motion. If the Veteran describes flare-ups of pain, the examiner should offer an opinion as to whether there would be additional limits on functional ability during flare-ups, and if feasible, express this in terms of additional degrees of limitation of motion during the flare-ups. If the examiner is unable to offer an opinion as to the nature and extent of any additional disability during a flare-up that fact should be so stated along with a rationale for this finding. The claim file must be made available to and be reviewed by the examiner in conjunction with the examination and that review should be noted in the examination report. A clear rationale for all opinions should be provided as well as a discussion of the facts and medical principles involved. However, if the requested opinion cannot be provided without resorting to speculation, the examiner should so state and provide a clear rationale as to why an opinion cannot be provided without resorting to speculation. 3. Thereafter, if necessary, any additional development deemed appropriate should be accomplished. The claim should then be readjudicated. If the claim remains denied, the RO should issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal, and allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter 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. 2010). _________________________________________________ J.N. MOATS 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) (2010).