Citation Nr: 1311706 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 10-47 581 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a rating in excess of 20 percent for chronic low back strain with degenerative disc disease. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD R. Dodd, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to January 1970 and August 1973 to August 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In this regard, VA received the Veteran's most recent claim for an increased rating for his service-connected back disability in March 2007. A December 2007 rating decision initially denied a rating in excess of 20 percent for such service-connected disability. In August 2008, the Veteran again filed a claim for an increased rating and, in connection with such application, he was afforded a VA examination in October 2008. As such evidence is new and material to the increased rating claim on appeal and was received during the one year appeal period following the December 2007 rating decision, it did not become final. The Veteran's increased rating claim was again denied in a March 2009 rating decision. Again, as additional, relevant evidence was received within one year of the March 2009 rating decision, such did not become final. Thereafter, in an August 2009 rating decision, the RO again denied a rating in excess of 20 percent for the Veteran's service-connected back disability and he appealed such denial to the Board. However, as new and material evidence had been received within one year of the December 2007 and March 2009 rating decisions, such are not final and the Veteran's claim has been pending since March 2007. In a form submitted with his December 2010 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the Board in Washington, DC. In an April 2011 letter, the Board informed the Veteran that his hearing was scheduled for May 2011. In a May 2011 letter from the Veteran's representative, the Veteran requested to reschedule the Board hearing due to illness. In a June 2011 letter, the Board informed the Veteran that his new hearing was scheduled for August 2011. Although the hearing notification was not returned by the U.S. Postal Service as undeliverable, the Veteran failed to report for the scheduled hearing, and has not subsequently requested rescheduling of the hearing. As such, his hearing request is deemed withdrawn. See 38 C.F.R. § 20.704(d) (2012). A review of the Virtual VA paperless claims processing system reveals VA outpatient treatment records dated June 2011 to January 2012 that contain references to the Veteran's back disability and have not been considered by the agency of original jurisdiction (AOJ). However, as the Veteran's claim is being remanded, the AOJ will have an opportunity to review all the newly associated documents such that no prejudice results to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veteran contends that his service-connected back disability is more severe than the currently assigned 20 percent evaluation and, as such, a higher rating is warranted. The Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his back disability. In this regard, the Board observes that he was last examined by VA in October 2008, more than four years ago. At the time of such examination, the Veteran complained of loss of bladder control. In direct contrast to the Veteran's allegation, the examiner indicated that he did not conduct a genital examination as there was no complaint of urinary incontinence. In light of the Veteran's allegation of loss of bladder control, the Board finds that a VA examination is necessary in order to determine if he does, in fact, have urinary incontinence as a result of his service-connected back disability. Furthermore, the evidence dated since the October 2008 VA examination suggests that the Veteran's back disability has increased in severity. In this regard, an October 2011 VA treatment record reflects that his medication dosage had been increased based on his complaints of pain. Therefore, a remand is necessary in order to schedule the Veteran for an appropriate VA examination in order to assess the current nature and severity of such service-connected disability. Furthermore, while on remand, the Veteran should be given an opportunity to identify any healthcare provider who treated him for his back disability since March 2006. In this regard, the Board notes that the record reflects that he has sought private treatment throughout the years, to include from the Blue Ridge Center. Additionally, the Veteran receives treatment through the VA facility in Asheville, North Carolina. The Board notes that records dated from November 2007 to September 2010 are contained in the paper claims file while records dated from June 2011 to January 2012 are in the Virtual VA file, however, it is unclear whether they contain a complete copy of all records relevant to the Veteran's back disability. Therefore, any identified records, to include those from the Blue Ridge Center and the Asheville VA Medical Center dated from March 2006 to November 2007 and from September 2010 to the present that are not already contained in the Virtual or paper claims file, should be obtained for consideration in the Veteran's appeal. Finally, as indicated in the Introduction, VA outpatient treatment records dated June 2011 to January 2012 that contain references to the Veteran's back disability were associated with the record after the issuance of the October 2010 statement of the case. Therefore, upon readjudication of the Veteran's claim, the AOJ should consider the entirety of the evidence, to include all evidence received since the issuance of the October 2010 statement of the case. 38 C.F.R. § 19.31. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any healthcare provider who treated him for his back disability since March 2006. After securing any necessary authorization from him, obtain all identified treatment records, to include those from the Blue Ridge Center and the Asheville VA Medical Center dated from March 2006 to November 2007 and from September 2010 to the present that are not already contained in the Virtual or paper claims file. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining any relevant outstanding treatment records, schedule the Veteran for a VA examination to determine the current severity of his service-connected back disability. The examiner should note all relevant pathology, and all indicated tests, including x-rays, should be conducted. The Veteran's claims file and a copy of this remand must be provided to the examiner for review upon examination, and the examination report must reflect review of these items. The examiner should describe in detail all symptomatology associated with the Veteran's low back disability, including any associated neurological involvement. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. The examiner should specifically indicate whether the Veteran's back disability results in any neurologic impairment, to include radiculopathy, bowel impairment, or bladder impairment, and, if so, the severity of such impairment. In this regard, the examiner is advised that the Veteran is already service-connected for radiculopathy of the right and left lower extremities. The examiner should specifically address the Veteran's allegations of urinary incontinence/loss of bladder control. The examiner should also indicate whether the Veteran's back disability results in incapacitating episodes and, if so, the frequency of such. The examiner should also discuss the impact the Veteran's back disability and associated bilateral lower extremity radiculopathy has on his employability. A complete rationale must be provided for any opinions offered. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include the evidence associated with the file since the issuance of the October 2010 statement of the case. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 or by the U.S. 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). _________________________________________________ A. JAEGER 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).