Citation Nr: 1316261 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 10-09 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for posterior facet syndrome, T10-L1. 2. Entitlement to an evaluation in excess of 10 percent for residuals of a right femur stress fracture with myositis. 3. Entitlement to an evaluation in excess of 10 percent for left tibia myositis. 4. Entitlement to an evaluation in excess of 10 percent for right tibia myositis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from September 1998 to July 2001. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Travel Board hearing before the undersigned in July 2012. A transcript of the hearing is associated with the claims file. 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 At her July 2012 hearing, the Veteran testified that she was recently (approximately April 2012) awarded disability benefits from the Social Security Administration (SSA). The evidence currently of record includes SSA records received in response to September 2009 and June 2011 requests. Currently, these records are limited to documents dated on or before March 2011. As these records predate the Veteran's reported date of award, another request for more recent SSA records is necessary. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2009) (requiring that relevant SSA records be obtained in order to satisfy VA's duty to assist). Additionally, the Veteran has argued that her disabilities have worsened since her last VA examination in October 2008. Specifically, she testified that she wears a back brace and she experiences burning sensations and numbness in her legs. Thus, a new examination addressing the current severity of these disabilities should be afforded. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95. Accordingly, the case is REMANDED for the following action: 1. Take appropriate action to contact SSA in order to obtain copies of records pertinent to the Veteran's recently successful claim for SSA benefits. If the records are not available such that further attempts to obtain the records would be futile, a notation to that effect should be made in the claims folder and communicated to the Veteran. 2. Schedule the Veteran for an examination to determine the current severity of her posterior facet syndrome, T10-L1, including any associated neurologic symptoms. The claims folder should be made available to the examiner and reviewed in conjunction with the examination. The examiner should specifically address: a. The current severity the Veteran's back disability. Range of motion should be noted, and all functional losses due to pain, incoordination, fatigue, weakness, flare-ups, etc. should be equated to decrease in motion (beyond what is shown clinically). Episodes requiring physician-prescribed bed rest should be described in detail as to duration and frequency. b. The presence of any neurologic symptoms; their association, if any, with her back disability; and the current severity of these symptoms. Each nerve affected or seemingly affected should be described as mild, moderate, moderately severe, or severe incomplete paralysis, or complete paralysis. c. The extent to which the Veteran's back disability and any associated neurologic symptoms affect her ability to secure and follow a substantially gainful occupation. Any opinion should be accompanied by a clear rationale consistent with the evidence of record. If the examiner cannot respond without resorting to speculation, he or she should explain why a response would be speculative. 3. Schedule the Veteran for a VA joint examination to determine the current severity of her right femur stress fracture residuals with myositis and bilateral tibia myositis. a. The current severity the Veteran's right femur stress fracture residuals with myositis. Ranges of motion should be noted, and all functional losses due to pain, incoordination, fatigue, weakness, flare-ups, etc. should be equated to decrease in motion (beyond what is shown clinically). b. The current severity of her left and right tibia myositis. Ranges of motion should be noted, and all functional losses due to pain, incoordination, fatigue, weakness, flare-ups, etc. should be equated to decrease in motion (beyond what is shown clinically). c. The presence of any neurologic symptoms; their association, if any, with her right femur stress fracture residuals with myositis, left tibia myositis, and/or right tibia myositis; and the current severity of these symptoms. Each nerve affected or seemingly affected should be described as mild, moderate, moderately severe, or severe incomplete paralysis, or complete paralysis. d. The extent to which the Veteran's leg disabilities affect her ability to secure and follow a substantially gainful occupation. The examiner should provide all examination findings, along with the complete rationale for each opinion expressed and conclusion reached. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so much be provided. 4. Thereafter, review the claims file and readjudicate the Veteran's claims. If any of the benefits sought on appeal remain denied, the Veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ Thomas H. O'Shay Acting 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).