Citation Nr: 1325098 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 09-29 105 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for multilevel degenerative disc disease (DDD) of the lumbosacral spine with herniated nucleus pulposus (HNP) at L4-5 prior to October 12, 2012, and a rating in excess of 40 percent thereafter. 2. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Barry Rothchild, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1955 to November 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. The Veteran testified before the undersigned at an April 2010 hearing at the RO. A transcript of that hearing has been associated with the file. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal which is not already of record. 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 A review of the claims file reveals that additional development is necessary before the Board may properly adjudicate the claim. Specifically, June 2013 correspondence indicated that the Veteran's low back disability had become worse since December 2012. The most recent VA examination was conducted in October 2012. Absent evidence clearly demonstrating that no worsening has occurred, a new VA examination must be afforded in order to assess the current level of symptomatology. Further, evidence added to the file suggests that neurologic abnormalities may be associated with the Veteran's service-connected back disability. On VA examination, the matter of such a connection should be addressed in order to determine whether a separate rating is warranted under Note (1) of the General Raring Formula for Diseases and Injuries of the Spine. In addition, VA treatment record from June 2013 indicated that additional relevant VA and private treatment records may exist. Appropriate efforts should be made to associates any outstanding records with the claims file. Finally, entitlement to TDIU is inextricably intertwined with the above claim being remanded. Therefore, this issue will be held in abeyance pending the remand. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request him to identify all private treatment related to the spine. Based on his response, take appropriate steps to locate and associate any relevant identified records with the claims file. 2. Obtain VA clinical records from the VAMC Brooklyn for the period from December 2012 to the present. 3. Schedule the Veteran for an examination of the spine. The claims file should be made available to the examiner. The examiner should conduct a thorough examination of the spine and specifically identify all current neurologic symptoms. For each neurologic symptom identified, the examiner should state whether it is at least as likely as not that the symptom is related to multilevel DDD of the lumbosacral spine with HNP. 4. Following completion of the above, readjudicate the issues on appeal in light of all evidence of record. If any benefit sought on appeal remains denied, a supplemental statement of the case should be furnished to the Veteran and his attorney, and he should be afforded a reasonable opportunity to respond. The Veteran 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). _________________________________________________ L. HOWELL 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).