Citation Nr: 1317560 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 08-26 019 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a liver disorder. 2. Entitlement to an initial disability rating in excess of 10 percent for service-connected residuals of laminectomy and discectomy for herniated nucleus pulposus, L5-S1, with sciatica. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Berry, Counsel INTRODUCTION The Veteran served on active duty from July 1985 to July 2005. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions dated in August 2005 and December 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran requested a travel Board hearing in his April 2008 substantive appeals. He was sent a letter indicating that he was scheduled for a Travel Board hearing in December 2010. The Veteran was rescheduled for a travel Board hearing in January 2011. The Veteran informed the RO that he would not be able to attend the January 2011 Board hearing and he requested that they reschedule his hearing. The Veteran was sent a letter in November 2011 informing him that he was scheduled for a Board hearing at the end of the month. The Veteran failed to appear at the scheduled proceeding. He did not request to reschedule that hearing and he has not provided good cause for his failure to appear. Accordingly, the Board will review his appeal as if he withdrew his hearing request. See 38 C.F.R. § 20.702(d) (2012). 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 Board regrets further delay with respect to the issues on appeal; however, after a review of the record, it finds that a remand is necessary for further evidentiary development. With respect to the Veteran's service connection claim for a liver disorder, he was scheduled for a VA examination in March 2008. The Veteran contacted the VA Medical Center in Decatur, Georgia and informed them that the he would not be able to attend the scheduled examinations because he will be overseas due to his job for at least the next three months. The Veteran informed the RO in August 2008 that he had just returned home from being overseas due to his job. The Veteran was not scheduled for another VA examination. The evidence of record reveals that the Veteran had elevated liver enzymes within two months of discharge from military service, which led to the diagnosis of non-alcoholic fatty liver disease (NAFLD) in November 2006 after further testing was accomplished. As the record indicates that the Veteran had symptoms of NAFLD (elevated liver enzymes) soon after discharge from service, the Board concludes that a VA examination and etiology opinion is necessary in order to properly adjudicate his claim. See 38 C.F.R. § 3.159 (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006). In addition, the Veteran has asserted that his service-connected low back disability has increased in severity since the last VA examination in April 2005. A private treatment record dated in February 2013 also shows that the Veteran recently underwent a lumbar spinal fusion from L4 to S1 indicating that a change in his service-connected back disability. The U.S. Court of Appeals for Veterans Claims has held that "[w]here the veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination." Olson v. Principi, 3 Vet. App. 480, 482 (1992). Furthermore, according to VAOPGCPREC 11-95 (1995), a new examination is appropriate when there is an assertion of an increase in severity since the last examination. Therefore, the Board concludes that the evidence of record reveals that another VA examination is necessary to determine the current severity of the Veteran's service-connecter residuals of laminectomy and discectomy for herniated nucleus pulposus with sciatica. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination by an appropriate specialist regarding the Veteran's service connection claim for a liver disorder. The claims file, including a copy of this remand, must be made available to the examiner for review, and the examiner should indicate that the claims file was reviewed in connection with the examination. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file and offer an opinion as to whether it is at least as likely as not (i.e., a fifty percent or greater probability) that the Veteran's nonalcoholic fatty liver disease or any other liver disorder found on examination had its onset in service or is otherwise related to the Veteran's active military to include any symptoms in service. The examiner should provide an explanation for all conclusions reached. 2. Schedule the Veteran for a VA examination of the lumbar spine to determine the nature and current level of severity of his service-connected residuals of laminectomy and discectomy for herniated nucleus pulposus, L5-S1, with sciatica. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner must record all pertinent medical complaints, symptoms and clinical findings in detail. As to all information and opinions requested below, a complete explanation must be provided. a. The examiner should state whether there is any evidence of favorable or unfavorable ankylosis in the lumbar spine. Range of motion testing should also be completed and the examiner should report the point (in degrees) at which pain is objectively recorded. It should also be determined whether there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's lumbar spine, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. An opinion should also be provided regarding whether any pain found on examination limits functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. b. The examiner should also identify any neurological impairment(s) associated with the Veteran's back disability, including any impairment manifested by pain and numbness and describe any symptoms and functional limitations associated with such impairment(s). c. The examiner should indicate whether the Veteran experiences incapacitating episodes (a period of acute signs and symptoms that requires physician-prescribed bed rest) and frequency and total duration of such episodes over the course of a year. The examiner is asked to be as specific as possible with respect to the frequency and total duration of any incapacitating episodes. 3. Upon completion of the foregoing and any other development deemed necessary, readjudicate the Veteran's claims of entitlement to service connection for a liver disability and entitlement to an initial increased rating for residuals of laminectomy and discectomy for herniated nucleus pulposus, L5-S1, with sciatica, based on a review of the entire evidentiary record. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, 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 MARTIN 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).