Citation Nr: 1303777 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 10-24 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for multilevel degenerative disc disease of the lumbar spine, evaluated as 10 percent disabling prior to December 5, 2011, and 40 percent disabling since December 5, 2011. 2. Entitlement to an increased rating for chronic cervical sprain/strain in excess of 20 percent disabling. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Emily L. Tamlyn, Counsel INTRODUCTION The Veteran served on active military duty from August 1987 to November 1992. These issues come before the Board of Veterans' Appeals (Board) on appeal from several rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In a June 2009 RO rating decision, the RO continued a prior evaluation for the multilevel degenerative disc disease of the lumbar spine at 10 percent disabling. In February 2012, the RO increased this rating to 40 percent disabling, effective December 5, 2011. In a March 2012 rating decision, the RO continued a prior rating for chronic cervical sprain/strain at 20 percent disabling. The Veteran testified at a decision review officer (DRO) hearing at the RO in August 2011. A copy of the transcript has been reviewed and is in the file. 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 VA has adopted a regulation requiring that when it becomes aware of private treatment records it will specifically notify the claimant of the records and provide a release to obtain the records. If the claimant does not provide the release, VA has undertaken to request that the claimant obtain the records. 38 C.F.R. § 3.159(e)(2) (2012). In his January 2010 notice of disagreement, the Veteran stated that he had been treated by a private practitioner, Dr. DeMorat, that month for his spine disabilities. The Veteran provided the address of this clinician, but there is no indication in the file that he was asked to provide authorization for VA to obtain these records. Such records would be relevant in this case where the Veteran is claiming that the effective date of his 40 percent rating should be the date of his claim for an increased rating in February 2009 (See February 2012 statement). Additionally, the Veteran stated at the DRO hearing, that he was receiving treatment from a Dr. Chuli at "the clinic in Vineland." It's unclear whether the Veteran was referencing a VA clinician or not (there is no record of treatment by Dr. Chuli in records of the Veteran's treatment at the VA clinic in Vineland). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete authorization for VA to obtain records of his treatment for neck or low back disabilities by Dr. DeMorat. If the Veteran does not provide the authorization, tell him that he can provide the records himself. If any requested records cannot be obtained, inform the Veteran of the missing records, of the efforts made to obtain the records and of any further actions that will be taken with regard to the claim. Under recently enacted legislation at least two requests for private records will ordinarily be required. 2. Ask the Veteran to clarify where and when he received treatment by Dr. Chuli. Then take the necessary steps to obtain the records. 3. If newly received evidence shows a change in the Veteran's disabilities, provide him with new VA examinations. 4. If the decision remains in any way adverse to the Veteran, provide a supplemental statement of the case (SSOC). The case should then be returned to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the 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 or by the United States Court of Appeals for Veterans Claims (Court) 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). _________________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).