Citation Nr: 1129166 Decision Date: 08/08/11 Archive Date: 08/16/11 DOCKET NO. 04-33 184 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial compensable rating for degenerative changes of the thoracic spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Andrew Dubinsky, Associate Counsel INTRODUCTION The Veteran had active service from February 1980 to July 1992. This matter arises before the Board of Veterans' Appeals (Board) from an April 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction over the Veteran's claim was subsequently transferred to the VA RO in Lincoln, Nebraska. In March 2011, the Veteran testified at a videoconference hearing in front of Veterans Law Judge John E. Ormond, Jr. He also testified at a Travel Board hearing in front of Veterans Law Judge Milo H. Hawley in July 2006. The transcripts of these hearings have been reviewed and are associated with the claims file. Then, in May 2011, the Board sent correspondence to the Veteran offering him a hearing before the third Veterans Law Judge who will participate in deciding his appeal. In June 2011, the Veteran waived his right to appear at an additional hearing before a third Veterans Law Judge and asked the Board to consider his case on the evidence of record. 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 After careful review of the record, the Board finds that a remand for additional development is necessary before proceeding to evaluate the merits of the Veteran's claim. The Veteran is currently in receipt of a noncompensable disability rating for his service-connected back disability. He claims that he is entitled to a higher evaluation for that disability. However, the Board observes that the Veteran underwent his most recent compensation and pension examination for this disability in September 1992. Given the passage of time since his most recent examination, the Board finds that a new compensation and pension examination would assist the Board in clarifying the extent of the Veteran's back disability and would be instructive with regard to the appropriate disposition of the issue under appellate review. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Thus, this matter must be remanded for a compensation and pension examination to ascertain the current severity of the Veteran's service-connected back disability. While this claim is in Remand status, the AMC should obtain the Veteran's recent VA treatment records to ensure the evidence is current. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's treatment records from the VA Medical Center in Omaha, Nebraska, from May 2010 to the present. 2. After obtaining the Veteran's VA treatment records, schedule him for an appropriate medical examination to determine the nature and extent of any current manifestations of his service-connected thoracic spine disability. All indicated evaluations, studies, and tests deemed necessary should be accomplished and all findings reported in detail. The claims file and a copy of this remand should be made available for review in connection with the examination. The examiner should indicate in the report that the claims file was reviewed. The examiner should distinguish to the extent possible between symptomatology resulting from the Veteran's service-connected thoracic spine disability and any other non-service-connected disorders that may be found. If it is medically impossible to distinguish among symptomatology resulting from the disorders, the examiner should state this in the examination report. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 3. After any additional development deemed necessary is accomplished, the Veteran's claim should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law, as well as regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). (CONTINUED ON NEXT PAGE) 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). ____________________________ ____________________________ Milo H. Hawley Mark W. Greenstreet Veterans Law Judge Veterans Law Judge Board of Veterans' Appeals Board of Veterans' Appeals __________________________________ John E. Ormond, Jr. 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).