Citation Nr: 1301210 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 11-04 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an initial rating in excess of 10 percent for spinal stenosis with degenerative joint disease of the lumbosacral spine. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran served on active duty from January 1956 to January 1961. Thereafter, he had periods of inactive duty training and active duty for training as a member of the Naval Reserves between 1979 to 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2012, the Veteran testified before a Veterans Law Judge seated at the RO. A written transcript of this hearing has been added to the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 increased initial rating for his service-connected low back disorder, spinal stenosis with degenerative joint disease. At his June 2012 personal hearing, the Veteran testified that his low back disorder has significantly worsened in severity since his most recent VA medical examination in December 2010. 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. See 38 U.S.C.A. § 5103A(d); Suttman v. Brown, 5 Vet. App. 127, 138 (1993); Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991). Next, the Board notes that the Veteran reported at his personal hearing that he continues to see private physicians for treatment of his low back disorder. He specifically cited Drs. Caruso and Lozowski as having treated his back in the recent past. VA is obligated to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A. VA's duty to assist includes obtaining relevant VA and private medical records when the existence and location of such records has been made known to VA. 38 U.S.C.A. § 5103A(b). The Board acknowledges that the RO has in the past requested the Veteran's private treatment records as part of the development of this appeal. As several years have passed since that initial request, and the Veteran has continued to receiving ongoing medical treatment, an additional records request is warranted. The Veteran is put on notice that because his reported medical treatment records are private, they may not be obtained without his written authorization. In the alternative, he may obtain and submit on his own behalf his private treatment records. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Contact the Veteran and request the names, addresses, and, if applicable, proper authorizations for any private, service, or VA medical care providers who have treated his low back disorder from March 2006 to the present, including Dr. Caruso and Dr. Lozowski. For any such source identified by the Veteran, contact that medical care provider and request the cited pertinent medical records not already obtained. Any negative reply must be documented for the record. 2. Schedule the Veteran for a VA examination to determine the current level of impairment of the service-connected thoracolumbar spine disability. Any tests deemed necessary should be conducted, any necessary consultations should be completed, and all clinical findings should be reported in detail. The examiner must review the Veteran's claims file and must explain the complete rationale for all opinions expressed and conclusions reached. The examiner is asked to describe the range of motion of the thoracolumbar spine, including any functional loss due to pain or painful motion (supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion) as well as weakness, excess fatigability, incoordination or pain on movement. Any additional functional loss should be expressed in terms of additional limitation of motion, if possible. The examiner should also indicate whether the Veteran experiences any neurological impairment, to include any radiculopathy or problems with bowel or bladder control, resulting from his thoracolumbar spine disability. If such neurological impairment exists, the nature and severity of it should be described in detail. The examiner must also not the presence, length, and severity of any incapacitating episodes. An incapacitating episode is 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. 3. After undertaking any additional development deemed appropriate, and giving the appellant full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable 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. 2012). _________________________________________________ K. J. ALIBRANDO 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).