Citation Nr: 1318982 Decision Date: 06/11/13 Archive Date: 06/21/13 DOCKET NO. 07-08 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent from February 18, 2003 to April 13, 2011 for a lumbar strain with degenerative disc disease. 2. Entitlement to a disability rating in excess of 40 percent as of April 14, 2011 for a lumbar strain with degenerative disc disease. 3. Entitlement to a disability rating in excess of 30 percent for degenerative disc disease of the cervical spine. ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from August 1957 to August 1959 and from April 1961 to April 1979, including combat service in the Republic of Vietnam, and his decorations include the Combat Infantryman Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which increased the Veteran's disability rating for his degenerative disc disease of the cervical spine from 10 to 30 percent, effective as of the February 18, 2003 date of the Veteran's claim, and increased his disability rating for his lumbar strain with degenerative disc disease from 10 to 20 percent, also as of February 18, 2003. The Board remanded the claims in November 2010 because the most recent VA examination of record was dated February 2007, and VA obtained a new examination on April 14, 2011. In a June 2012 rating decision, the RO increased the rating for his lumbar strain with degenerative disc disease from 20 to 40 percent as of April 14, 2011; continued the Veteran's 30 percent disability rating for his degenerative disc disease of the cervical spine; assigned a 10 percent rating for right lower extremity neuropathy as of October 12, 2007, and a 40 percent rating as of April 14, 2011; assigned a 10 percent rating for left lower extremity neuropathy as of October 12, 2007, and a 40 percent rating as of April 14, 2011; assigned a 10 percent rating for left upper extremity neuropathy as of October 12, 2007; assigned a 10 percent rating for right upper extremity neuropathy as of October 12, 2007; and granted entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, effective October 12, 2007. The Veteran has not filed a notice of disagreement as to the disability ratings or effective dates associated with the grants of service-connection for his bilateral upper and lower extremity neuropathies or with the grant of TDIU. In May 2013, in response to VA's April 2013 letter requesting clarification, the Veteran informed VA that he now wishes to represent himself. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Board shows that the Veteran has received ongoing VA treatment for his spine disabilities at the Fayetteville, North Carolina, VA Medical Center (VAMC). The most recent treatment records physically or electronically associated with the claims file are dated in December 2011. 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 or electronically available to the adjudicator. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, on remand, the RO should obtain all outstanding pertinent medical records from the Fayetteville VAMC. In light of the state of the record, the Board finds that the claims must be remanded to associate those records and to afford him a VA examination to assess the current severity of low back and cervical spine disabilities, for which he was most recently formally evaluated in April 2011. See Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). The Veteran should also be given an opportunity to identify any healthcare provider who treated him for his service-connected lumbar and cervical spine disabilities since April 2011. Thereafter, any identified records that are not already included in the claims file should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature and severity of his service-connected lumbar and cervical spine disabilities. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 2. Ensure that all pertinent and non-duplicative VA and private treatment records since April 2011 are physically or electronically associated with the claims folder. 3. After associating any pertinent, outstanding records, afford the Veteran an appropriate VA examination of his lumbar spine and cervical spine. The claims file should be made available to and reviewed by the examiner. The examiner should perform an appropriate range of motion examination, expressing all findings in degrees and noting the degree where there is painful motion, if any. The examiner should state whether ankylosis is present. The examiner should also identify the nerve(s) involved in the Veteran's service-connected bilateral upper and lower extremity peripheral neuropathy and determine the severity of each (e.g., mild, moderate, moderately severe, or severe), and whether each such disability is best characterized as neuritis, neuralgia, or complete or incomplete paralysis. In offering any opinion, the examiner should take into consideration all the evidence of record, to include medical records as well as the Veteran's lay statements, accepted medical principles, and objective medical findings. All opinions expressed should be accompanied by a supporting rationale. 4. Thereafter, readjudicate the appeal. If any claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ STEVEN D. REISS 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).