Citation Nr: 1120990 Decision Date: 05/31/11 Archive Date: 06/06/11 DOCKET NO. 10-09 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an increased disability rating in excess of 10 percent for service-connected degenerative disc disease, cervical spine, C4-C7. ATTORNEY FOR THE BOARD J.M. Seay, Associate Counsel INTRODUCTION The Veteran had active service from March 1976 to March 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The record shows that the Veteran mentioned her service-connected lumbar spine disability in the March 2010 VA Form 9, suggesting that it may have increased in severity. This issue is REFERRED to the RO for appropriate 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 The law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). A review of the claims folder indicates that the most recent treatment records pertaining to the Veteran's neck disorder date from February 2005. She should be requested to provide information as to any treatment obtained since that time prior to a final adjudication of her claim. The record also reveals that the Veteran was last afforded a VA examination in September 2008. In a letter received in August 2009, the Veteran explained that there was no way that her disability had not increased in severity due to her pain and discomfort from it. She stated that it affects all of her daily living activities and that she cannot read a book for more than 10 minutes or ride in her husband's truck. As such, the Board finds that a more recent VA examination is in order for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected disability. See 38 C.F.R. § 3.159 (2010); see also VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination). See also Palczewksi v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505- 06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability...the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that she provide the names and addresses of all VA and non-VA health care providers from whom she sought treatment for her service-connected cervical spine disorder since February 2005. All necessary releases to retrieve these records must also be obtained from the Veteran. All efforts made to obtain any identified records must be documented in the claims file. All efforts to obtain VA or other government records must be continued until further efforts are deemed futile, following which a formal memorandum of unavailability must be prepared for inclusion in the claims folder. 2. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of her service-connected degenerative disc disease, cervical spine, C4-C7. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected disability. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. In particular, the examiner should indicate whether there is any form of ankylosis and state the total duration of incapacitating episodes over the past 12 months. The examiner should also identify all neurological manifestations resulting from the service-connected cervical spine disability. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1 (2010), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, to include the denial of her claim, of failing to so report. See 38 C.F.R. § 3.655 (2010). 4. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran should be furnished a Supplemental Statement of the Case (SSOC) and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). 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). _________________________________________________ L.M. BARNARD 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).