Citation Nr: 1318732 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-38 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an evaluation in excess of 10 percent for degenerative joint disease, L4-5, L5-S1. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1972 to March 1973, February 1977 to October 1984. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued the 10 percent disability evaluation for the Veteran's lumbar spine disability. Jurisdiction of the matter has since been transferred to the RO in Montgomery, Alabama. The Board obverses that in a January 2008 rating decision, the RO, in part, denied a claim for a total rating based on unemployability due to service-connected disability (TDIU). The Veteran has not disagreed with that decision, and the Board concludes that a claim for TDIU has not been raised. Cf. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for a either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal that the Board is adjudicating in this decision. 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 VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion only when it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). See also Robinette v. Brown, 8 Vet. App. 69, 76 (1995). The Veteran was last evaluated for his service-connected lumbar spine disorder in March 2008. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). However, subsequent to that examination, in an April 2013 Informal Hearing Presentation the Veteran's representative stated that the March 2008 VA examination report was inadequate as it did not sufficiently portray the current severity of the Veteran's disorder and pointed out that it had been five years since that evaluation. Accordingly, the Board finds that a contemporaneous VA medical examination is warranted to determine the current severity of the Veteran's lumbar spine disorder. See Littke v. Derwinski, 1 Vet. App. 90, 92 (1990) (noting that VA's duty to assist includes the conduct of a contemporaneous medical examination, in particular where it is contended that a service-connected disability has become worse); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (finding that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). In the January 2008 rating decision, the RO also granted service connection for left leg radiculopathy and assigned a 20 percent evaluation. In considering whether a higher evaluation is warranted for the lumbar spine disorder, the Board must consider both the orthopedic and neurological manifestations of the disability. As to the neurological manifestations (i.e. left leg radiculopathy), the Board notes that the September 2009 statement of the case (SOC) issued with regard to the increased rating claim for the lumbar spine disorder did not address entitlement to a higher rating for neurological manifestations. Therefore, on remand, such should also be accomplished. In addition, the record reflects that the Veteran has continued to receive on-going treatment from Dr. Bennett in Oxford, Alabama. Also, in a September 2009 statement, the Veteran's wife indicated that a physician at the VA Medical Center would not operate on the Veteran. As this matter is being returned for additional development, all ongoing and outstanding VA and private medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (noting that VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following actions: 1. With any necessary assistance from the Veteran, obtain all outstanding private treatment records, to include those from Dr. Bennett in Oxford, Alabama. All efforts to obtain additional evidence must be documented in the claims folder. If the AMC/RO is unable to secure these records, it must notify the Veteran and (a) identify the specific records it is unable to obtain; (b) briefly explain the efforts that it made to obtain those records; (c) describe any further action to be taken with respect to the claim; and (d) notify the Veteran that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). 2. Obtain all outstanding VA treatment records. All efforts to obtain the additional evidence must be documented in the claims folder. If the search for such records has negative results, documentation to that effect should be included in the claims files. 3. Schedule the Veteran for an examination in order to determine the current level of severity of his lumbar spine disorder. The claims folder and a copy of this Remand must be made available to the examiner who should indicate on the examination report that (s)he has reviewed the folder in conjunction with the examination. All indicated studies, including range of motion studies in degrees using a goniometer, should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. To the extent possible, the examiner should assess the degree of severity of any pain. Tests of joint movement against varying resistance should be performed. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should also specifically report at what point any pain begins, and at what point any pain causes any functional impairment, or whether there is any additional range of motion loss due to excess fatigability, incoordination, or flare-ups. The examiner should indicate whether the Veteran's lumbar spine disorder is so severe so as to result in incapacitating episodes (i.e., episodes in which his adverse symptomatology required bed rest ordered by a physician). If so, the examiner should comment on the duration and frequency of such incapacitating episodes. The examiner should comment on whether there is any neurological abnormality associated with the lumbar spine disorder, to include but not limited to bladder or bowel impairment. The examiner should also address the impact of the Veteran's lumbar spine disorder on his daily activities and employment. The supporting rationale for all opinions expressed must be provided. 4. Thereafter, readjudicate the Veteran's claim for an increased evaluation for lumbar spine disability, taking into consideration the neurological manifestations to include left leg radiculopathy. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and an appropriate period of time in which to respond before the case is 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). _________________________________________________ BETHANY L. BUCK 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).