Citation Nr: 1313489 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 10-48 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an increased evaluation for a service connected lumbar spine disability, currently evaluated as 10 percent disabling prior to April 15, 2011, and as 20 percent disabling from April 15, 2011. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. McBrine, Counsel INTRODUCTION The Veteran served on active duty from February 2001 to February 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 decision of the Lincoln, Nebraska, Department of Veterans Affairs (VA) Regional Office (RO), which continued the Veteran's evaluation for his service connected low back disability. During the course of this appeal, the Veteran's evaluation was increased to 20 percent, effective April 15, 2011. The Veteran continues to disagree with the percentage of disability assigned. The Veteran received a hearing before the undersigned Veterans Law Judge at the RO in conjunction with this appeal in November 2011. 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 Regretfully, the Board finds that a remand is required in this case. Initially, the Board notes that, during his hearing testimony of November 2011, the Veteran indicated that he felt his symptomatology had increased since his last VA evaluation examination, in April 2011. As such, the claim must be remanded in order that the Veteran may be provided with a current VA examination that adequately addresses the current level of severity of the Veteran's service connected lumbar spine disability. Further, during the Veteran's hearing testimony, he indicated that he was scheduled to have an MRI later that month. No record of that MRI has been associated with the Veteran's claims file, and there are no VA treatment records dated more recently than 2010 in the Veteran's claims file. Prior to arranging for the Veteran to undergo medical evaluation, the RO should obtain and associate with the record all outstanding pertinent medical records, to specifically include records from any VA facilities. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As such, on remand, the RO should obtain all relevant VA treatment records from 2010 to the present. Accordingly, the case is REMANDED for the following action: 1. The RO shall contact the Veteran and request that he provide the names and addresses of any health care providers who have recently treated him for any back disability since 2010. After allowing an appropriate time for response, contact any identified facility, including the VA facility at which the Veteran was most recently treated, to obtain all of his available treatment records. Any MRI report from November 2011 should also be associated with the Veteran's claims folder. If these requested records are unavailable, or the search for them otherwise yields negative results and further attempts to obtain these records would be futile, this must be documented in the claims file and the Veteran notified in accordance with 38 C.F.R. § 3.159(c)(2). 2. After completion of the above requested development, and any other development deemed warranted by the record, schedule the Veteran for a VA examination for his low back. The entire claims file, to include a complete copy of this REMAND, must be made available to the examiner, and the examination report should note review of the file. The examiner should specifically identify (1) range of motion of the back; and (2) functional impairment, including upon repetitive testing, due to pain, incoordination, weakened movement, and excess fatigability on use. The examiner should also note whether the Veteran's back appears to cause any neurological deficits. The severity and frequency of any neurological deficits should be described in detail. Further, the examiner should indicate whether the Veteran's service-connected back disability has resulted in any incapacitating episodes (for these purposes an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician). If incapacitating episodes are indicated, the examiner should comment on the duration and frequency of such episodes. A report should be prepared and associated with the Veteran's claims folder. 3. After ensuring that the requested actions are completed, re-adjudicate the claim on appeal. The claim for an increased rating should take into consideration provisions of 38 C.F.R. § 3.321(b). 4. After completion of the above requested development, and any other development deemed warranted by the record, the RO should adjudicate the claim on appeal in light of all pertinent evidence (to specifically include all that added to the record since the issuance of the last SSOC on the matters on appeal) and legal authority. The RO must provide adequate reasons and bases for its determinations. 4. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC), and afford them the opportunity to provide written or other argument in response thereto before the claims file is returned to the Board for further appellate consideration. . The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ DAVID WIGHT 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).