Citation Nr: 1323686 Decision Date: 07/25/13 Archive Date: 08/06/13 DOCKET NO. 09-21 016 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating greater than 10 percent for cervical spine myositis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Shawkey, Counsel INTRODUCTION The Veteran served on active duty from July 1998 to April 2001. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 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 In written argument in July 2013, the Veteran's representative pointed out that the Veteran was last evaluated for his neck disability by VA nearly five years earlier, in September 2008. As such, he requested that the Veteran be afforded a new, contemporaneous examination in order to more accurately assess the severity of this disability. He noted that this was particularly essential in the Veteran's case since there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination. See Allday v. Brown, 7 Vet. App. 517 (1995). The Board agrees and finds that a new examination is warranted in order to properly evaluate the Veteran's service connected cervical spine myositis. 38 U.S.C.A. § 5103A(d). In addition, the September 2008 VA examination report notes that the Veteran had participated in physical therapy performed at the VA medical center (VAMC) in Miami in April 2008 and May 2008, and had just begun private chiropractic treatment. These identified records are not on file and should be obtained. 38 U.S.C.A. § 5103A(b),(c). Accordingly, the case is REMANDED for the following actions: 1. Request from the Veteran the name and location of the chiropractor who began treating him in 2008 for his cervical spine disability and obtain copies of these pertinent records. Appellant's assistance in identifying and obtaining the records should be solicited as needed. If the request for treatment records is not successful, the AMC/RO should document the claims file and inform the appellant and his representative of this so that they will have an opportunity to obtain and submit the records themselves. 2. Obtain updated VA treatment records from the Miami VAMC, to include physical therapy records in April 2008 and May 2008 as well as any subsequent records. If the request for treatment records is not successful, the AMC/RO should document the claims file and inform the appellant and his representative of this so that they will have an opportunity to obtain and submit the records themselves. 3. Afford the Veteran a new VA examination in order to assess the current severity of his service-connected cervical spine myositis. The entire claims file, to include the Veteran's virtual VA folder, must be made available to the examiner for review. The report of examination should include a discussion of the Veteran's documented medical history and assertions and all clinical findings should be reported in detail. The examiner should undertake range of motion studies of the cervical spine, specifically identifying any motion accompanied by pain. The examiner should identify any objective evidence of pain and attempt to assess the extent of any pain. The extent of any incoordination, weakened movement, excess motion, or fatigability on use should be described. To the extent possible, the functional impairment due to incoordination, weakened movement, or fatigability on use should be assessed in terms of additional degrees of limitation of motion. The examiner must express an opinion concerning whether there would be additional limits of functional ability on repeated use and during any flare-ups. If feasible, the examiner should express any functional impairment in terms of additional degrees of limitation of motion on repeated use and during flare-ups. The rationale for all requested opinions should be provided. 4. Thereafter, readjudicate the issue on appeal. If the benefit sought is not granted, furnish the Veteran and his representative a Supplemental Statement of the Case and afford them a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant and his representative have 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). _________________________________________________ MICHAEL D. LYON 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).