Citation Nr: 1314264 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 07-23 659 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a rating in excess of 40 percent for a thoracolumbar strain with degenerative changes, previously evaluated as a dorsal back strain with degenerative changes, since May 28, 2008. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from May 1993 to July 1998. This matter came to the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which, in pertinent part, denied entitlement to a rating in excess of 10 percent for a dorsal strain with degenerative changes. The appellant perfected an appeal of the RO's determination in July 2007. Before the appeal was certified to the Board, VA in a November 2008 rating decision increased the rating assigned for the appellant's back disability to 20 percent, effective May 28, 2008. In connection with his appeal, in February 2010, the appellant and his spouse testified at a Board hearing at the RO before the undersigned. A transcript of the hearing is contained in the record. In a May 2010 decision, the Board, in pertinent part, denied entitlement to a rating in excess of 10 percent for dorsal strain with degenerative changes prior to May 28, 2008. The issue of entitlement to a rating in excess of 20 percent for dorsal strain with degenerative changes from May 28, 2008, was remanded to the RO via the Appeals Management Center (AMC) for additional evidentiary development. In a September 2011 rating decision, the AMC recharacterized the appellant's service-connected back disability as a chronic lumbosacral strain with mild degenerative changes and increased the rating for that disability to 40 percent, effective May 28, 2008. In a November 2011 rating decision, the RO, inter alia, granted entitlement to service connection for major depressive disorder and assigned an initial 70 percent rating, effective March 22, 2010. The RO also granted a total rating based on individual unemployability due to service-connected disabilities, effective March 22, 2010. There is no evidence that the appellant has perfected an appeal to this rating decision. In November 2011, the Board again remanded the matter for additional evidentiary development and due process considerations. In a January 2013 rating decision, the RO denied entitlement to service connection for fibromyalgia and determined that new and material evidence had not been received to reopen a previously denied claim of service connection for chronic pain syndrome. The record currently available to the Board contains no indication that the appellant has initiated an appeal with any of these determinations. Thus, these issues are not currently before the Board on appeal. For the reasons set forth below, a remand of this matter is necessary. The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the appellant if further action is required. REMAND The appellant reports receiving treatment for his service-connected back disability at the VA Southern Oregon Rehabilitation Center and Clinic in White City and at the VA Community Based Outpatient Clinic in Klamath Falls. See April 2011 Statement in Support of Claim. Although the appellant asked the RO to obtain these records in support of his claim, the record contains no indication that any such attempt was made. The duty to assist requires VA to make as many requests as are necessary to obtain relevant records in the custody of a Federal department or agency, including a VA medical facility. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). Thus, the necessary efforts to obtain these relevant VA records must be undertaken. The Board also observes that in the November 2011 remand the RO/AMC was instructed to arrange for the appellant to undergo a VA medical examination to address, in part, the impact of his back disability on his ability to work. While no examination was conducted, the Veteran has been awarded a total disability evaluation based on individual unemployability due to service connected disorders. Given that fact, it was harmless error not to schedule the Veteran for an examination. Significantly, however, if the records requested from the VA facilities above show any suggestion of spinal ankylosis a VA examination should be conducted to determine the nature and extent of that impairment. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should review the record and ensure that all clinical records pertaining to care provided for a thoracolumbar disorder at the VA Southern Oregon Rehabilitation Center and Clinic in White City and the VA Community Based Outpatient Clinic in Klamath Falls for the period since May 2008 are secured and associated with the record on appeal. All attempts to secure this evidence must be documented in the claims file. If the AMC/RO cannot locate such records, the AMC/RO must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain them would be futile. The AMC/RO must then: (a) notify the appellant and his representative of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The appellant must then be given an opportunity to respond. 2. After the above development has been completed, the RO/AMC should review these records and any additional evidence received and determine whether there is any suggestion that the appellant's back disorder is manifested by ankylosis. If so, he should be afforded a VA medical examination for the purpose of determining the severity of his service-connected thoracolumbar strain with degenerative changes, previously evaluated as a dorsal back strain. The claims folder and access to the appellant's Virtual VA file must be provided to the examiner for review in connection with the examination. After examining the appellant and reviewing the claims folder and Virtual VA file, the examiner must: (a) provide range of motion findings of the thoracolumbar spine; (b) comment on any functional impairment resulting from painful motion, weakness, fatigability, and incoordination; (c) comment on the presence or absence of any ankylosis. If feasible, functional impairment should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. The examiner must also state whether the appellant has a lumbar intervertebral disc syndrome which results in incapacitating episodes manifested by physician prescribed bedrest, and if so, the duration of any episodes in the past 12 months should be reported. If the examiner feels unable to provide the requested information, he or she must explain the basis of such conclusion. 3. Thereafter, the AMC/RO must review the record and ensure that the foregoing development actions, as well as any other development that may be in order, has been conducted and completed in full. The RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. If any report is deficient in any manner, the RO must implement corrective procedures at once. 4. After undertaking any additional development deemed necessary, the RO should readjudicate the claim, considering all of the evidence of record. If the benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case and given the opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ DEREK R. BROWN 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).