Citation Nr: 1315422 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 09-42 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased rating for residuals of compression fractures, T4-T7, with degenerative disc disease, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from November 1965 to January 1967. This matter came to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. Before the matter was certified to the Board, in a November 2012 determination, the RO recharacterized the appellant's service-connected back disability to include degenerative disc disease and continued the currently-assigned 10 percent disability rating. The Veteran appeared at a hearing before the undersigned at the RO in March 2013. For the reasons set forth below, a remand of this matter is required. 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 statutory duty to assist claimants in obtaining the evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002). This duty includes making as many requests as are necessary to obtain relevant records in the custody of a Federal department or agency, including a VA medical facility and the Social Security Administration (SSA). 38 C.F.R. § 3.159(c)(2) (2012). A review of the record indicates that there are outstanding federal records relevant to the claim. In that regard, at his March 2013 Board hearing, the appellant testified that he had been receiving treatment for his service-connected back disability, including regular physical therapy sessions, at the Long Beach VA Medical Center for the past several years. The record on appeal does contain some records from that facility, but they are incomplete. For example, there is a gap in the record between March 2008 and November 2008, during which the appellant reportedly underwent MRI of his spine. In addition, records subsequent to March 2009 have not yet been obtained. Complete records are necessary to ensure VA's duty to assist has been fulfilled. Also at his March 2013 Board hearing, the appellant testified that he had applied for disability benefits from the Social Security Administration (SSA). Although his application was reportedly denied, additional records relevant to the appellant's VA compensation claim may be in the possession of SSA. VA's duty to assist also includes obtaining a medical examination or opinion if one is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). In this case, the appellant was last examined in connection with his claim in November 2012. At that time, the examiner concluded that the appellant's service-connected residuals of compression fractures, T4-T7, had progressed to degenerative disc disease. At that time, however, she noted that the appellant did not exhibit intervertebral disc syndrome or neurological symptoms. At his March 2013 Board hearing, however, the appellant testified that since the November 2012 examination, he had begun to experience additional symptoms, including radiating pain. He testified that his increased symptomatology included back pain to his hips, buttocks, and legs, particularly after exertion. Having had the opportunity to observe the appellant's demeanor at the hearing, the Board finds his testimony to be highly credible. The Board further notes that the appellant testified that he would be willing to report for another VA medical examination to evaluate his service-connected back disability. The United States Court of Veterans Appeals (Court) has held that where a Veteran claims that a service-connected disability is worse than when originally rated, and the available evidence is insufficient to adequately evaluate the current state of the condition, VA must provide a new examination. Olson v. Principi, 3 Vet. App. 480, 482 (1992). In light of the discussion above, and given the evidence currently of record, the Board finds that a more contemporaneous examination is necessary. 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should make as many requests as are necessary to obtain complete clinical records relevant to the appeal from the Long Beach VAMC for the period from March to November 2008, and from March 2009 to the present. The RO/AMC may only end its efforts to obtain these records if it is concluded that the records sought do not exist or that further attempts to obtain them would be futile. In the event the RO/AMC is unable to obtain these records, the appellant must be notified in accordance with 38 C.F.R. § 3.159(e). 2. The RO/AMC should contact the Social Security Administration (SSA) and request copies of any records in their possession assembled in connection with the appellant's application for disability benefits. The RO/AMC may only end its efforts to obtain these records if it is concluded that the records sought do not exist or that further attempts to obtain them would be futile. In the event the RO/AMC is unable to obtain these records, the appellant must be notified in accordance with 38 C.F.R. § 3.159(e). 3. After the above action is completed, and whether records are received or not, the appellant should be scheduled for an appropriate VA examination to determine the nature and severity of his service-connected residuals of compression fractures, T4-T7, with degenerative disc disease. The claims folder and access to any additional records in 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, the examiner should comment on the severity of the appellant's service-connected residuals of compression fractures, T4-T7, with degenerative disc disease, to include providing range of motion findings of the thoracolumbar spine. He or she should also comment on any functional impairment resulting from painful motion, weakness, fatigability, and incoordination. If feasible, this determination should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. Additionally, the examiner should identify all complications associated with the appellant's service-connected residuals of compression fractures, T4-T7, with degenerative disc disease, to include any neurological disabilities such as radiculopathy or intervertebral disc syndrome. If a diagnosis of intervertebral disc syndrome is deemed appropriate, the examiner should comment on the frequency and duration of any incapacitating episodes. A complete rationale must be provided for any opinion offered. 4. Following completion of the actions delineated above, and after conducting any additional evidentiary development necessary, the RO/AMC should readjudicate the issue on appeal, considering all the evidence of record. If the benefit sought by the appellant remains denied, he and any representative must be provided a Supplemental Statement of the Case (SSOC) and an opportunity to respond. The case should then be returned to the Board, if in order. 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). _________________________________________________ MICHAEL D. LYON 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).