Citation Nr: 1318385 Decision Date: 06/06/13 Archive Date: 06/11/13 DOCKET NO. 09-19 990 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a rating higher than 10 percent for spondylolithesis with herniated nucleus pulposus, L5-S1. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1989 to December 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In the rating decision, the RO continued a 10 percent disability rating for the Veteran's spondylolithesis with herniated nucleus pulposus, L5-S1. The Veteran timely disagreed with the rating decision and the RO subsequently issued an April 2009 statement of the case (SOC). The Veteran submitted his substantive appeal (VA Form 9) in June 2009. The Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge in May 2013. A written transcript of this hearing has been prepared and incorporated into the evidence of record. 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 Board's review of the claims file reveals that further RO action in regard to the appeal is warranted, even though such will, regrettably, further delay an appellate decision. Review of the Board hearing transcript reflects that the Veteran has contended that his current disability rating does not accurately reflect the severity of his service-connected back disability. He specifically stated that his disability had deteriorated since his last VA examination and that he had begun to experience new associated neurological symptoms. Pursuant to 38 C.F.R. § 3.327(a) (2012), examinations will be requested whenever VA determines that there is a need to determine the exact severity of a disability. See also 38 C.F.R. § 3.159 (2012). Because the evidence currently of record appears inadequate to resolve the claim for a higher rating for the Veteran's service-connected back disability, further examination of the Veteran is warranted and the RO should arrange for the Veteran to undergo VA spine examination, by an appropriate medical provider, at a VA medical facility. The Veteran is hereby advised that failure to report for the scheduled examination, without good cause, may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the Veteran fails to report for the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met, and that the record before the examiner is complete, the RO should undertake appropriate action to obtain all pertinent, outstanding records. In regard to current treatment, the record reflects that there are outstanding VA medical records which may be pertinent to the claim. Specifically, the Veteran testified in May 2013 that he received treatment for his back from VA at locations in both Florida and Georgia, but the only VA treatment notes associated with the claims file were generated by VA facilities in Florida. Further, VA records were last associated with the record in April 2009, approximately three (3) years ago. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO obtain all outstanding records of relevant VA evaluation and/or treatment of the Veteran. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The evidence of record also indicates that there are outstanding private medical records which may be pertinent to the claim on appeal. The Veteran submitted a May 2012 letter about his back symptomatology from his private physician, Dr. Williamson, and testified that he had received treatment from that doctor since early 2011. To the extent possible, any outstanding private records should be obtained. The Veteran has also indicated that some employment records may be pertinent to his claim. Specifically, he has reported missing time from his current employment for the U.S. Air Force due to his back disability and he has also testified that he was denied other employment due to disability. Although he submitted some documentation of examination from the private employer who refused him employment, Petroleum Helicopter, Inc., he indicated that radiographic evidence remained outstanding. To the extent possible, any outstanding private records should be obtained. Further, as the Veteran currently is employed by a Federal agency, VA, pursuant to 38 C.F.R. § 3.159 (c) (2), has a duty to make as many requests as are necessary to obtain relevant records from his employer. The RO/AMC must take appropriate steps to obtain any relevant records from the Veteran's employer. See Cullin v. Shinseki, No. 12-1018, 2013 WL 1789296 (April 29, 2013) (non-precedential) (in which the Court of Appeals for Veterans Claims determined that the Board had not complied with the duty assist because it did not obtain Postal Service employment records for a Veteran claiming entitlement to increased ratings in part because his disabilities interfered with his employment). Therefore, the RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. The RO's letter to the Veteran should explain that he has a full one-year period for response. See 38 U.S.C.A § 5103(b) (1) (West 2002); but see 38 U.S.C.A. § 5103(b) (3) (West Supp. 2012) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). In its letter, the RO should specifically request that the Veteran furnish, or furnish appropriate authorization for the RO to obtain, all outstanding records from Petroleum Helicopter, Inc., and Dr. Williamson. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2012). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal in light of all pertinent evidence and legal authority. Accordingly, the case is REMANDED for the following action: 1. Gather any outstanding VA treatment records from facilities in Florida and Georgia. Note that, as the only records currently associated with the claims file are records created at the Tallahassee VA Medical Center prior to April 1, 2009, all records (dated before and after April 1, 2009) from VA facilities in Georgia are outstanding, as are records generated after April 1, 2009 from facilities in Florida. Associate any available records with the claims file. If no such records are available, include documentation of the unavailability in the claims file. 2. Take appropriate steps to obtain any relevant - pertaining to any injury/illness, impairments observed, or accommodations made, in regard to the Veteran's service-connected disabilities - employment records from the U.S. Air Force, specifically at Robbins Air Force Base. Pursuant to 38 C.F.R. § 3.159 (c) (2), VA has a duty to make as many requests as are necessary to obtain relevant records from a Federal department or agency. Efforts to obtain such records should only be ended if VA concludes that the records either do not exist or that further efforts to obtain them would be futile. 3. Afford the Veteran an additional opportunity to submit any private medical evidence that is not within the current record. Provide him with forms authorizing the release of any outstanding private treatment and/or employment records to specifically include, but not limited to, treatment records from Dr. Williamson and any records of examination from Petroleum Helicopter, Inc. Make at least two (2) attempts to obtain records from any identified source and associate available records with the claims file. If any records are not available, inform the Veteran and request that he submit any copies in his possession. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo VA spine examination, by an appropriate medical professional, at a VA medical facility. The entire claims file must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented assertions and medical history, to specifically include his private treatment. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should identify all neurological manifestations of the service-connected lumbar spine disability. For each identified manifestation, the examiner should indicate whether such manifestation constitutes a separately ratable disability; and, if so, provide an assessment of the severity of the manifestation as mild, moderate, moderately severe, or severe. The examiner should conduct range of motion testing of the thoracolumbar spine (expressing the results in degrees). The examiner should render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the thoracolumbar spine due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether the Veteran has any ankylosis of the lumbar spine; and, if so, the extent thereof and whether it is favorable or unfavorable. Considering all orthopedic and neurological findings, the examiner should opine whether it is appropriate to evaluate the disability as intervertebral disc syndrome (IVDS). If so, the examiner should indicate the total duration and frequency of any incapacitating episodes (i.e., a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician) over the past 12 months: (a) at least one week, but less than 2 weeks; (b) at least two weeks but less than 4 weeks; (c) at least 4 weeks but less than 6 weeks; or (d) at least 6 weeks. Finally, the examiner should discuss whether, considering all pertinent lay and medical evidence, there has/have been any change(s) in the severity of the service-connected lumbar spine disability since the last, March 2009, VA examination. If so, the examiner should identify the approximate date(s) of any such change(s), and provide an assessment of the severity of the disability for each date. The examiner should set forth all findings and test results, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy (ies) of any notices of the date and time of the examination sent to him by the pertinent VA medical facility. 6. Readjudicate the remanded claim, to include consideration of any appropriate staged ratings. If the claim is not granted in full, the Veteran and his representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. 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). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop the claim is both critical and appreciated. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). These claims 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). _________________________________________________ MARJORIE A. AUER 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).