Citation Nr: 1319853 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 07-32 182 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for degenerative disc disease of the cervical spine. 2. Entitlement to an initial evaluation in excess of 10 percent for thoracolumbar spinal strain. 3. Entitlement to an initial evaluation in excess of 10 percent for neurological impairment of the left upper extremity. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant had active service from April 1989 to October 2000. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2007 and December 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In March 2013, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record. The Board notes that the appellant also completed a substantive appeal for the issue of entitlement to service connection for insomnia (sleep problems). In July 2012, the appellant contacted the RO and stated that she wished to drop the issue of unspecified neurosis from her appeal. Thus, the issue is not before the Board. 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 At the March 2013 Board hearing, the appellant testified that her back had gotten worse since her previous examination. See Board Hearing Transcript (Tr.) at 3. She stated that her pain is getting worse to where she is spending more time with the heat pad. She stated that if she is sitting, leaning back in a chair or trying to sleep, her left arm goes completely numb. See Tr. at p. 5. Her most recent VA examination was in October 2011. As the appellant has asserted that her back and upper extremity conditions have worsened, the Board finds that the October 2011 VA examination is not sufficiently contemporaneous for purposes of evaluating the nature and severity of the appellant's disabilities. The appellant is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that a VA examination is necessary prior to appellate adjudication of this issue. The March 2013 Board hearing also reflects that there were additional private chiropractic records that have not been associated with the claims file. See Tr. at 2. Although the record was held open for 60 days, no additional records were received. As the appeal is being remanded, the appellant should be requested to inform VA of any additional relevant private treatment records and the Agency of Original Jurisdiction (AOJ) should attempt to obtain the records. Accordingly, the case is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should ask the appellant to identify the providers of all treatment she has received for the disabilities at issue, including the chiropractor mentioned at the Board hearing, and to provide the releases needed for VA to secure any private records of such evaluation/treatment. The RO should obtain for the record complete clinical records (those not yet secured) from all sources identified. If any private provider does not respond to a request for records, the appellant and her representative should be so advised, and reminded that ultimately it is her responsibility to ensure that private records are received. 2. After completion of the above and after any records received have been associated with the claims file, schedule the appellant for a VA examination to determine the following: Determine the current severity of the appellant's: (1) service-connected thoracolumbar spinal strain; (2) degenerative disc disease of the cervical spine; and (3) neurological impairment of the left upper extremity. The claims file must be made available to the examiner, and the examiner should review the file prior to the examination. The examiner is to provide a detailed review of the appellant's pertinent medical history, current complaints, and the nature and extent of the disabilities at issue. All appropriate tests and studies, including neurological studies and range of motion studies reported in degrees, must be accomplished. All findings should be made available to the physicians prior to the completion of their reports, and all clinical findings should be reported in detail. The orthopedic examination should 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 service-connected thoracolumbar and cervical spine disabilities. If pain on motion is observed, the examiner should indicate the point at which pain begins. The VA examiner should indicate whether the appellant's neurological impairment of the left upper extremity, associated with cervical spine degenerative disc disease, is mild, moderate, or severe. After considering the Veteran's documented medical history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss 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. 3. Thereafter, readjudicate the issues on appeal. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant 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). _________________________________________________ MILO H. HAWLEY 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).