Citation Nr: 1313281 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 10-49 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial increased rating for degenerative disc disease, spondylosis, and lumbar spine, currently rated 10 percent disabling. ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to July 1983 with the United States Marine Corps; reserve duty with the United States Army Reserve from January 1984 to October 1987; and, active duty with the United States Army from November 1987 to December 2001. This matter comes to the Board of Veterans' Appeals (Board) from a September 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which implemented the June 2009 Board's decision, granting service connection for degenerative disc disease, spondylosis, lumbar spine, assigning a 10 percent disability rating, effective January 1, 2002. A notice of disagreement was filed in January 2010 with regard to the disability rating assigned. A statement of the case was issued in November 2010 and a substantive appeal was received in December 2010. In May 2011, the Veteran submitted statements and documents pertaining to bilateral hearing loss and tinnitus. These documents are referred to the Agency of Original Jurisdiction for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the Veteran's January 2010 notice of disagreement he stated that in approximately November 2009 he began to seek treatment at the Hickory, North Carolina, VA Medical Center (VAMC). These treatment records must be associated with the claims folder or Virtual VA folder. Bell v. Derwinski, 2 Vet. App. 611 (1992). In February 2002 and May 2007, the Veteran underwent a VA examination to assess the nature and etiology of his low back disability. He asserts that his back condition has worsened since his last VA examination. While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95 (1995). In order to more accurately reflect the current level of the Veteran's disability, the Board believes that an examination and opinion is necessary. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the case is REMANDED for the following actions: 1. Associate the entirety of the Veteran's VA outpatient treatment records from the Hickory VAMC with the claims folder or Virtual VA claims folder. 2. The Veteran should be afforded an orthopedic examination to determine the severity of his lumbar spine disability. It is imperative that the claims file be made available to and reviewed by the examiner in connection with the examination. All clinical and special test findings should be clearly reported, and pertinent orthopedic and neurological findings should be reported. The examination of the spine should include range of motion studies. With regard to range of motion testing, the examiner should report at what point (in degrees) pain is elicited as well as whether there is any other functional loss due to weakened movement, excess fatigability or incoordination. The examiner should specifically state if ankylosis and muscle spasm are present. The examiner should also estimate any additional loss of function during periods of flare-up, expressed in degrees of lost motion. The examiner should report any specific information as to the frequency and duration of incapacitating episodes in the past 12 months, and a description of all neurologic manifestations, to include, but not limited to, radiating pain into an extremity, and bowel or bladder impairment. The examiner should opine whether the Veteran's service connected lumbar spine disability, alone or in concert with his service-connected hernia disability, precludes gainful employment for which his education and occupational experience would otherwise qualify him. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 3. Thereafter, readjudicate the issue of entitlement to an initial increased rating for degenerative disc disease, spondylosis, lumbar spine. If the benefit sought on appeal is not granted in full, the Veteran should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ ERIC S. LEBOFF 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).