Citation Nr: 1319224 Decision Date: 06/13/13 Archive Date: 06/21/13 DOCKET NO. 09-50 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for bilateral lower extremity radiculopathy. 2. Entitlement to an increased rating for chronic lumbosacral strain, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. D. Simpson INTRODUCTION The Veteran had active duty service from March 1989 to March 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 and April 2009 rating decisions by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Saint Petersburg, Florida. In his December 2009 substantive appeal, the Veteran requested a hearing. He withdrew his hearing request in October 2011. A review of the Virtual VA paperless claims processing system does not show any pertinent evidence that has not already been associated with the claims folder. 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 Veteran asserts that his low back symptoms have increased in severity since his most recent VA examination in October 2007. (See Veteran September 2008 report; private medical records dated July 2008 and November 2009). Given his statements of worsening disability, the Veteran should be afforded a new VA examination to determine the current severity of his low back disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). It is unclear as to whether the Veteran has had ongoing VA or private treatment for claimed radiculopathy symptoms or low back pain. Request that the Veteran identify any recent VA or private treatment for back pain or lower extremity symptoms and associate any newly identified records with the claims folder. 38 U.S.C.A. 5103A(b),(c); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any medical treatment records for his claimed lower extremity symptoms and service connected lumbar spine disability and furnish appropriate authorization for the release of private medical records. Take the necessary steps to obtain all records of VA treatment for these disabilities. Efforts to obtain VA records must continue until they are obtained, or it is reasonably certain that they do not exist or that further efforts would be futile. If the Veteran fails to furnish any necessary releases for private treatment records, he should be advised to obtain the records and submit them to VA. If any requested records cannot be obtained, inform the Veteran of this fact, of the efforts made to obtain the records and of any additional efforts that will be made with regard to his appeals. 2. After associating any newly generated records with the claims folder, schedule a VA examination before an appropriate examiner to determine the current level of severity of his service-connected low back disability. The Veteran's claims file, access to Virtual VA or VBMS efolder, and a copy of this remand must be provided to the examiner for review and the examination report should reflect review of these items. All indicted tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with the Veteran's lumbar spine disability, including limitation of motion and any periods of incapacitation due to intervertebral disc syndrome. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine. If pain on motion is observed, the examiner should indicate the point (in degrees) at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. Finally, the examiner should opine as to whether the Veteran suffers from objective manifestations of neurological symptomatology associated with his service-connected lumbar spine disability. This includes, but is not limited to, providing an opinion as to whether the Veteran has objective manifestation of radiculopathy in either lower extremity due to his service-connected lumbar spine disability. A complete rationale must be provided for all opinions offered, and the Veteran's lay statements regarding his symptomatology must be considered and discussed. 3. The RO/AMC should then review the claims file and all additional development to ensure that the mandates of this remand have been satisfied. If additional development is deemed necessary, these steps should be taken prior to returning this case to the Board. 4. After completion of the above, the claims should be reviewed in light of any new evidence. If the claims are not granted, the Veteran should be furnished an appropriate supplemental statement of the case (SSOC) and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). _________________________________________________ J.A. MARKEY 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).