Citation Nr: 1303476 Decision Date: 02/01/13 Archive Date: 02/08/13 DOCKET NO. 09-29 876 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased initial rating for a lumbar spine disability, rated at 10 percent prior to January 9, 2009, and 20 percent from January 9, 2009. 2. Entitlement to a rating greater than 30 percent for a psychiatric disability. 3. Entitlement to a total disability rating for individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran had active service from July 1986 to October 1986, February 1987 to March 1987, March 2003 to April 2004, and March 2005 to July 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburg, Pennsylvania. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND Records in December 2008 and November 2012 indicate that there are outstanding VA psychiatric treatment records. They must be associated with the file. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, a new examination should be conducted. The most recent medical evidence of record is the VA examination conducted in 2009. See Littke v. Derwinski, 1 Vet. App. 90 (1990). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran to provide him an opportunity to identify all VA and non-VA medical providers who have treated him for his lumbar spine and psychiatric disabilities. The RO must then attempt to obtain copies of the pertinent medical records that are not already in the claims file, to include all VA treatment records dated from November 2008 to the present. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain the named records, the RO is unable to secure such records, the RO must notify the Veteran and his representative and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded an examination to determine the current severity of his service-connected lumbar spine disability. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All indicated testing must be conducted. The examiner must conduct full range of motion studies on the service-connected lumbar spine disability. The examiner must first record the range of motion on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least 3 repetitions and after any appropriate weight-bearing exertion. Then, after reviewing the Veteran's complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected lumbar spine disability. The examination report must be typed. 3. The Veteran must be afforded the appropriate VA examination to determine the current severity of his service-connected psychiatric disability. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings should be reported in detail. The report prepared must be typed. The examiner must comment upon the presence or absence, frequency, and severity of the psychiatric symptoms to include: affect; speech; panic attacks; ability to understand complex commands; short- and long-term memory; judgment; abstract thinking; motivation; mood; ability to establishing and maintaining effective work and social relationships; suicidal and/or homicidal ideations; obsessional rituals; ability to function independently, appropriately, or effectively; impulse control; neglect of personal appearance and hygiene; ability to adapt to stressful circumstances; delusions or hallucinations; general behavior; persistent danger of hurting self or others; ability to perform activities of daily living; and orientation. The examiner must enter a complete multi-axial evaluation, and assign a Global Assessment of Functioning score, together with an explanation of what the score represents in terms of his psychological, social, and occupational functioning. The examination report must be typed. 4. The Veteran must be afforded an appropriate VA examination to determine to determine the effects of his service-connected disabilities on his ability to obtain and maintain employment consistent with his education and occupational experience. The claims file and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims file and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All necessary special studies or tests are to be accomplished. The examiner must elicit from the Veteran and record for clinical purposes a full work and educational history. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran's statements, the examiner must provide an opinion as to whether the Veteran's service-connected disabilities preclude him from securing and following substantially gainful employment consistent with his education and occupational experience. This opinion must be provided without consideration of his nonservice-connected disabilities, or age. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 5. The RO must notify the Veteran that it is his responsibility to report for the examinations and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim on appeal must be adjudicated. If the claims remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).