Citation Nr: 1237984 Decision Date: 11/06/12 Archive Date: 11/16/12 DOCKET NO. 07-09 913 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a disability evaluation in excess of 20 percent for a low back injury with arthritic spurring at L4-5. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. R. Mullins, Associate Counsel INTRODUCTION The Veteran had active service from June 1975 to June 1979 and from January 1981 to May 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, denying the claim currently on appeal. This issue was previously remanded by the Board in September 2010 for further evidentiary development. 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 Regrettably, an additional remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Initially, the Board notes that the Veteran was scheduled for a VA examination in October 2010. The purpose of this examination was so that an opinion could be offered as to whether it was at least as likely as not that the Veteran's loss of bladder control was secondary to his service-connected lumbar spine disability. The examiner was specifically asked to provide a complete rationale in support of any opinion offered. A review of the October 2010 VA examination report reflects that the examiner opined that the Veteran's urinary/bladder symptoms were unrelated to his service-connected lumbar spine condition. The examiner did not offer any rationale in support of this conclusion, aside from simply noting that it was more likely due to prostate enlargement. The Veteran should be scheduled for a new VA examination so that an opinion that is supported by a complete rationale may be provided. See 38 U.S.C.A. § 5103(d); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In addition, as pointed out by the Veteran's representative in October 2012, the October 2010 examination report has the word "DRAFT" written at the conclusion of the report six times. The examination report found on Virtual VA also contains the words "DRAFT." The Veteran's representative argued that it is unclear whether this report is in fact the final examination report. Given the fact that the examination report clearly refers to itself as "DRAFT," the Board must agree that it is not clear whether this is indeed the final examination report prepared in conjunction with this examination. The RO/AMC should contact the Charlie Norwood VA Medical Center (VAMC) to clarify whether this is in fact the final VA examination report. If not, then a copy of the final report must be obtained and incorporated into the claims file. Finally, the record reflects that the Veteran was last afforded a VA examination regarding the severity of his lumbar spine symptomatology in May 2009. While the record does not contain evidence of further treatment for this condition, the October 2010 VA examination report indicates that the Veteran reported that his low back disability had been worsening over the past 2 years. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the currently assigned disability rating may be incorrect. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a 2 year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). The Veteran should be scheduled for a more current examination in which all of the symptomatology associated with his lumbar spine disability, to include any associated neurological symptomatology, is discussed in detail. (CONTINUED ON NEXT PAGE) Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Charlie Norwood VAMC to determine whether the October 2010 examination report of record, containing the word "DRAFT," is in fact a draft or the final report. If this is not the final report, a copy of the final report must be obtained and incorporated into the claims file. 2. The Veteran should be scheduled for a VA examination before an appropriate specialist(s) to determine the current level of severity of his service-connected low back disability. The Veteran's claims file and a copy of this remand must be provided to the examiner for review and the examination report should reflect review of these items. All indicted tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with the Veteran's lumbar spine disability, including limitation of motion and any periods of incapacitation due to intervertebral disc syndrome. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. Finally, the examiner should opine as to whether the Veteran suffers from objective manifestations of neurological symptomatology associated with his service-connected lumbar spine disability. This includes, but is not limited to, providing an opinion as to whether it is at least as likely as not that the Veteran's loss of bladder control is a result of his service-connected lumbar spine disability. A complete rationale must be provided for all opinions offered, and the Veteran's lay statements regarding his symptomatology must be considered and discussed. 3. The RO/AMC should then review the claims file and all additional development to ensure that the mandates of this remand have been satisfied. If additional development is deemed necessary, these steps should be taken prior to returning this case to the Board. 4. After completion of the above, the claim should be reviewed in light of any new evidence. If the claim is not granted, the Veteran should be furnished an appropriate supplemental statement of the case (SSOC) and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate 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. 2012). _________________________________________________ J. A. MARKEY 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) (2012).