Citation Nr: 1315759 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 10-04 266 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a higher initial rating for degenerative joint disease of the lumbar spine, rated noncompensable from November 4, 2008 through July 25, 2011 and 10 percent disabling since July 26, 2011. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to August 1978 and from February 1986 to February 2003. He received the Army Commendation Medal. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that decision, the RO granted service connection for degenerative joint disease of the lumbar spine and assigned an initial noncompensable disability rating, effective November 4, 2008. In January 2012, the RO assigned a 10 percent disability rating for degenerative joint disease of the lumbar spine, effective July 26, 2011. The Veteran testified before the undersigned at a February 2013 videoconference hearing at the RO. A transcript of that hearing has been associated with his claims folder. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. The documents in this file have been reviewed and considered as part of this appeal. 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 The evidence suggests that the Veteran's service-connected low back disability may have worsened since his last VA examination in July 2011. For example, the July 2011 VA examination report reflects that there were no abnormal spinal curvatures, including scoliosis. However, a May 2012 VA primary care treatment note reveals that there was mild scoliosis noted at approximately 5 to 10 degrees. Given this evidence, VA's duty to obtain a new examination as to the current severity of the Veteran's service-connected low back disability is triggered. Moreover, the Veterans Claims Assistance Act of 2000 (VCAA) requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c), (d) (2012). The VCAA's duty to assist includes a duty to help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody. 38 C.F.R. § 3.159(c)(4). The May 2012 VA primary care treatment note indicates that the Veteran was scheduled for a return visit in 6 months. Also, he reported during the February 2013 hearing that he had received VA treatment for his back disability in July and September 2012 and that he continued to receive ongoing VA treatment. The most recent VA treatment records included among the Veteran's paperless records in the Virtual VA system are from the El Paso VA Health Care System and are dated to June 2012. Thus, it appears that there are additional VA treatment records that have not yet been obtained. VA has a duty to obtain any additional relevant records. 38 U.S.C.A. § 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all records of the Veteran's treatment for a back disability from the El Paso VA Health Care System dated from June 2012 through the present, and from any other sufficiently identified VA facility. All efforts to obtain these records must be documented in the claims file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. 2. Thereafter, schedule the Veteran for a VA examination to evaluate the current severity of his service-connected low back disability. All indicated tests and studies shall be conducted. The claims folder, including this remand and any relevant records contained in the Virtual VA system, along with any records obtained pursuant to this remand, must be sent to the examiner for review; consideration of such shall be reflected in the completed examination report or in an addendum. The ranges of thoracolumbar spinal motions shall be reported in degrees. The examiner shall also specify what, if any, additional range-of-motion loss (in degrees) is due to any weakened movement, excess fatigability, incoordination, flare ups, and/or pain. The examiner shall report whether there is any muscle spasm or guarding and whether any such symptoms are severe enough to result in an abnormal gait or abnormal spinal contour. The examiner shall report whether there is any ankylosis of the thoracolumbar spine or entire spine. If ankylosis is present, the examiner shall specify whether it is favorable or unfavorable and the angle at which the spine is held. The examiner shall also report the total duration of any incapacitating episodes due to intervertebral disc syndrome requiring bed rest prescribed by a physician and treatment by a physician during the past 12 months. The examiner shall also specify the nerves affected by the low back disability and provide an opinion as to the severity of any associated paralysis, neuritis, or neuralgia. The examiner must provide reasons for any opinion given. 3. If the benefit sought on appeal remains denied, the agency of original jurisdiction (AOJ) shall issue a supplemental statement of the case. After the Veteran is given an opportunity to respond, the case shall be returned to the Board. 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). _________________________________________________ THOMAS J. DANNAHER 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).