Citation Nr: 1320912	
Decision Date: 06/28/13    Archive Date: 07/05/13

DOCKET NO.  10-00 055	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUE

Entitlement to a disability evaluation in excess of 20 percent for service connected low back strain.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

E. D. Anderson, Counsel


INTRODUCTION

The Veteran served on active duty from August 1989 to August 1990.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. 

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 is seeking entitlement to a disability evaluation in excess of 20 percent for service connected low back strain.  

The Veteran was last afforded a VA examination in May 2009.  He has asserted that his disability has worsened since that time and that the May 2009 VA examination does not accurately reflect the current severity of his service connected low back disability.  

The fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination.  See Suttman v. Brown, 5 Vet. App. 127, 138 (1993); Green (Victor) v. Derwinski, 1 Vet. App. 121, 124 (1991).  An examination too remote for rating purposes cannot be considered "contemporaneous."  See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994).  Additionally, VA generally has a duty to provide additional examination when the claimant alleges that the disability in question has undergone an increase in severity since the time of the last examination.  VAOPGCPREC 11-95 (Apr. 7, 1995).  

As it has been more than four years since the Veteran was last examined in connection with this claim, on remand, the Veteran should be scheduled for a new VA examination.




Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran and ask him to provide the names and addresses of all VA or private medical care providers that have evaluated or treated him for a low back  disorder since 2008. With his authorization, obtain all identified records that are not already in the claims file. 

2.  The RO should schedule the Veteran for a VA examination of his low back condition.  The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any.

The examiner is also reminded to consider the Veteran's lay statements regarding the nature and severity of his disability.

The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file.  

All findings should be described in detail and all necessary diagnostic testing performed. 

The claims file must be properly documented regarding any notifications to the Veteran as to any scheduled examination. 

3.  When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence.  If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The appellant 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).



_________________________________________________
K. Parakkal
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).