Citation Nr: 1310146 Decision Date: 03/26/13 Archive Date: 04/02/13 DOCKET NO. 10-44 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial disability evaluation (rating) in excess of 10 percent for degenerative joint disease of the lumbar spine with spondylolisthesis. 2. Entitlement to service connection for a neck disorder, including as secondary to service-connected degenerative joint disease of the lumbar spine with spondylolisthesis. 3. Entitlement to service connection for a bilateral hip disorder, including as secondary to service-connected degenerative joint disease of the lumbar spine with spondylolisthesis. 4. Entitlement to service connection for a bilateral knee disorder, including as secondary to service-connected degenerative joint disease of the lumbar spine with spondylolisthesis. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Appellant (Veteran) and his wife ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active duty service from March 1966 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Board has not only reviewed the Veteran's physical claims file, but also the Veteran's file on Virtual VA, to ensure a total review of the available evidence. A claim for increased evaluation includes a claim for TDIU where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Accordingly, that issue is inferred here. Further development is required before the Board can adjudicate the Veteran's pending claims. 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 a duty to assist a veteran in the development of the claim. This duty includes assisting a veteran in the procurement pertinent records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The VA treatment records obtained indicates that relevant treatment records have not been obtained. In particular, the Veteran reported on his March 2009 claim and again in testimony before the undersigned that he receives treatment for his service-connected degenerative joint disease of the lumbar spine, as well as his claimed neck, hip, and knee disabilities at the VA Medical Center in Dallas, Texas. However, only records dated June 2009 and July 2009 have been associated with his claims file, despite the fact that the available records reference treatment prior to those dates. A June 2009 treatment note indicates that the Veteran was treated for his back in March 2009 and that he was treated by VA prior to March 2009. The Veteran's statements at his hearing indicate his treatment is ongoing, and there is no indication that more recent records have been associated with the claims file, despite the indication that they exist and likely contain information regarding the Veteran's claims. VA must make all necessary efforts to obtain relevant records in the possession of a Federal agency. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA records are considered to be constructively of record and VA is charged with knowledge of their contents. Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Additionally, at his March 2012 hearing, the Veteran testified that he had been treated for his service-connected degenerative joint disease of the lumbar spine by a chiropractor, in addition to VA, for approximately 7 years. A March 2012 letter from Hawkins Chiropractic is of record, but the Veteran's treatment records have not been obtained. As it is necessary to remand the case, the RO should also take this opportunity to associate any private treatment records with the claims file. In addition, the Court has stated that the fulfillment of the statutory duty to assist includes conducting a thorough and contemporaneous medical examination, one that takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board acknowledges that the Veteran was afforded a VA examination in June 2010, and that a copy of the examination report is associated with his claims file. Nevertheless, the Veteran indicates that his lumbar spine disorder interferes with everyday activities and has a significant effect on his employment; he testified that his degenerative joint disease of the lumbar spine with spondylolisthesis limited his employment opportunities and interferes with his ability to work. As such, the TDIU claim is part and parcel of the increased rating claim on appeal. In order to effectively evaluate the Veteran's service-connected lumbar spine disorder, an additional VA examination regarding the condition and associated symptomatology is required. See 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4) (VA has an affirmative duty to obtain an examination of the claimant at VA health-care facilities if the evidence of record does not contain adequate evidence to decide a claim). Accordingly, the case is REMANDED for the following action: 1. The RO should send the Veteran additional VCAA notice as to the issue of entitlement to TDIU and conduct any necessary development. 38 U.S.C.A. §§ 5102 , 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). 2. Associate with the claims file the Veteran's complete VA treatment records from the Dallas, Texas medical center and all associated clinics, as well as any other VA facility identified by the Veteran or in the record, for the period prior to June 2009, and from July 2009 to the present. 3. After obtaining any necessary authorization from the Veteran, obtain his medical records from Hawkins Chiropractic, as well as any other private medical providers. 4. Schedule the Veteran for a VA examination to determine the current nature and severity of the service-connected degenerative joint disease of the lumbar spine with spondylolisthesis. The claims file must be provided to the examiner. The examiner should conduct all indicated testing, including range of motion testing, and review the results of any testing prior to completion of the examination report. The examiner should state whether there is any evidence of favorable or unfavorable ankylosis of the spine, and determine the range of motion of the Veteran's lumbar spine, in degrees, noting by comparison the normal range of motion of the lumbar spine. The examiner should also indicate whether there is weakened movement, excess fatigability, or incoordination attributable to the service-connected lumbar spine disability, expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. An opinion must be stated as to whether any pain found in the lumbar spine could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. The examiner should indicate whether the Veteran has intervertebral disc syndrome; if so, the examiner should state whether the Veteran experiences incapacitating episodes, as defined by 38 C.F.R. § 4.71 , and the frequency and total duration of such episodes over the course of the past 12 months. The examiner should indicate if there is bowel or bladder impairment caused by the lumbar spine disability. Based on the review of the claims file, the examiner must provide an opinion as to whether the Veteran is unable to obtain or retain employment due only to his service-connected lumbar spine disability, consistent with his education and occupational experience, irrespective of age and any nonservice-connected disorders. A rationale for all opinions expressed should be provided. 4. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claims on appeal. If the benefits sought remain denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, 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 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).