Citation Nr: 1306899 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 07-19 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a disability rating in excess of 10 percent prior to March 12, 2009, and in excess of 40 percent thereafter, for degenerative disc disease with degenerative joint disease of the lumbar spine. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from November 1968 to November 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2006 decision drafted by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, and issued by the VA RO in Pittsburgh, Pennsylvania. In June 2009, the Board remanded the issue listed above for additional development consistent with the duties to notify and assist, to include providing the Veteran with a new examination, which took place in September 2009. In a December 2009 rating decision, the RO increased the Veteran's rating for his lumbar spine disability to 40 percent, effective March 12, 2009; the RO also assigned a temporary 100 percent rating from July 17, 2008 to August 31, 2008 under 38 C.F.R. § 4.30, which is not contested. On a claim for an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the issue has been characterized as shown on the first page of this decision. The case has returned to the Board for appellate review. The issues of whether new and material evidence had been received to reopen a claim for entitlement to service connection for residuals of a head injury to including organic brain syndrome, and entitlement to service connection for a cervical spine disorder, were remanded by the Board in June 2009 along with the claim currently on appeal. Following development conducted pursuant to the Board's June 2009 remand, the Agency of Original Jurisdiction (AOJ) granted service connection for those disorders in October 2011 and December 2009 rating decisions, respectively. As such are complete grants of the benefits sought on appeal, those issues are no longer before the Board. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). The issue of entitlement to a disability rating in excess of 20 percent for degenerative disc disease with degenerative joint disease of the cervical spine has been raised by the record-see the Veteran's November 2011 statement-but has not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ 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 Veteran reported in a November 2011 statement that he has experienced a continued increase in symptoms relating to his low back disability; he specifically listed eighteen ways in which his low back disability limits his activities of daily living. The Veteran also reported that he has had many additional trips to the VA Medical Centers (VAMCs) in Altoona, Pennsylvania, and Pittsburgh, Pennsylvania. The Board notes that the Veteran made this statement more than two years after his most recent VA examination of his low back, which VA provided in September 2009. Moreover, that examination is now more than 3 years old. Finally, in an October 2012 letter, the Veteran states that he was scheduled for spine surgery on November 30, 2012. As such, the evidence indicates that the disability has increased in severity since the last examination and VA is required to afford him a contemporaneous VA examination to assess the current nature, extent, and severity of his service-connected lumbar spine disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Additionally, while on remand, the Veteran should be given an opportunity to identify any healthcare provider who treated him for his lumbar spine disability since November 2011. Thereafter, any identified records, to include those from the Altoona, Pennsylvania, and Pittsburgh, Pennsylvania VAMCs dated from November 2011 to the present that are not already included in the claims file, should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant treatment records for the Veteran's service-connected lumbar spine disability dating since November 2011 from the VA Medical Centers in Altoona, Pennsylvania, and Pittsburgh, Pennsylvania, and their outpatient clinics, as well as any records relating to the Veteran's November 2012 spine surgery. 2. After the above has been accomplished to the extent possible, schedule the Veteran for a VA lumbar spine examination to determine the current severity of his degenerative disc disease with degenerative joint disease of the lumbar spine. The entire claims file (both the paper file and any relevant electronic portion of the file) must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary tests should be performed and the results reported. The examiner should comment on the symptomatology associated with the Veteran's lumbar spine disability, to include range of motion as well as the duration of any incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician. 3. After completing these actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 4. After the development requested above has been completed to the extent possible, the record should again be reviewed (to specifically include all evidence added to the claims file since the last adjudication) and the claim adjudicated. If any benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ M. N. HYLAND 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) (2012).