Citation Nr: 1316042 Decision Date: 05/15/13 Archive Date: 05/29/13 DOCKET NO. 09-23 153A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to an increased rating for chronic lumbosacral strain with degenerative joint and disc disease, currently evaluated as 20 percent disabling. 2. Entitlement to an initial evaluation in excess of 20 percent for cervical spine degenerative joint and disc disease from January 10, 2012. 3. Entitlement to an initial evaluation in excess of 10 percent for cervical spine degenerative joint and disc disease from July 16, 2008. 4. Entitlement to an increased rating for postoperative right knee with patellofemoral pain, currently evaluated as 10 percent disabling. 5. Entitlement to an increased rating for postoperative left knee with chondromalacia, currently evaluated as 10 percent disabling. 6. Entitlement to a total rating based on unemployability due to service connected disability (TDIU). REPRESENTATION Appellant represented by: Penelope E. Gronbeck, Attorney-at-law WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from May 1987 to March 1989. This appeal initially came before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from rating decisions of the VA Regional Office (RO) in Togus, Maine that denied evaluations in excess of 20 percent for chronic lumbosacral strain and disc disease, 10 percent for post operative right and left knee disabilities, and a total rating based on unemployability due to service connected disability (TDIU). These issues were previously remanded by the Board. During the pendency of the appeal, by rating action dated in July 2012, service connection was granted for cervical spine degenerative joint and disc disease, evaluated as 10 percent disabling from July 16, 2008, and 20 percent disabling, effective January 10, 2012. The Veteran appeals for higher initial ratings. Following review of the record, 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 The Veteran asserts that symptoms associated with his service-connected orthopedic/neurologic disabilities are more disabling than reflected by the currently assigned disability evaluations and warrant higher ratings. It is maintained that the service-connected disorders cause him to be totally disabled and unable to obtain or engage in any gainful employment for which he is entitled to TDIU. The Veteran was most recently afforded a hearing before the undersigned Veterans Law Judge in February 2013. During the hearing, he indicated that there are outstanding records of treatment pertinent to the disabilities claimed on appeal. Specifically, testimony was presented to the effect that he saw a Dr. McConnell twice a year for his back. He related that he had obtained physical therapy for unspecified orthopedic problems. The appellant testified that he received injections for pain occasionally, and that he had seen a neurosurgeon in consultation about surgery on his back. He stated that during the month prior to the hearing, he had been treated at VA Portland [Maine] for pain and numbness in the knees that were getting worse. Review of the record and Virtual VA discloses that the most recent VA outpatient records date through March 2012. Therefore, as of this writing, more than a year of the Veteran's outpatient records has not been made available for review. As VA has notice of the potential existence of additional records, they must be retrieved and associated with the other evidence already on file. See Bell v. Derwinski, 2 Vet.App. 611 (1992). As such, records dating from April 2012 to the present should be requested from the VA Portland treating facility and associated with the claims folder. The Veteran indicated at his hearing that he had received physical therapy, was treated by a Dr. McConnell, and was seen in consultation by an unnamed neurosurgeon. It is unclear whether these providers are private or associated with VA. Therefore, he should be contacted and requested to provide authorization to secure such records. It is also noted, with regard to the TDIU claim that there is an additional disability for which service connection has been granted since the last adjudication of the TDIU issue. Initial readjudication by the RO is indicated. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran in writing and request that he submit authorization to retrieve clinical records that identifies all healthcare providers, including Dr. McConnell, the neurosurgeon he saw, and physical therapists who have treated him for back, neck and knee disorders since 2008. VA should request these records when and if proper authorization is received. The appellant may also gather the records from private providers and submit them to the VA if he so desires. 2. Request outpatient clinical records dating from April 2012 through the present from VA Portland, Maine and associate with the claims folder. 3. After taking any further development deemed appropriate, re-adjudicate the issues on appeal. If it is determined that additional examination is indicated as a result of records received, such examination should be scheduled. If a benefit is not granted, provide the appellant and his attorney/representative a supplemental statement of the case and afford an opportunity to respond before the case is returned to the Board. 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).