Citation Nr: 1325403 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 10-05 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an increase disability rating in excess of 10 percent for thoracolumbar hyperextension strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from August 2001 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The issue of entitlement to service connection for myopic astigmatism was also denied by the RO in May 2008. The Veteran submitted a timely Notice of Disagreement to this issue and the issue currently on appeal. The RO issued a Statement of the Case for these issues in December 2009. However, in the January 2010 Substantive Appeal, the Veteran stated he was only appealing the issue of entitlement to an increase disability rating for service-connected thoracolumbar hyperextension strain. As such, the issue of entitlement to service connection for myopic astigmatism is not before the Board for review. The Veteran also indicated in his Substantive Appeal that he wanted to be scheduled for a videoconference hearing. A videoconference hearing was scheduled for January 2011 and the Veteran was provided notice of this hearing in November 2010. However, the Veteran failed to report to the scheduled hearing and failed to explain his absence. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2012). 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 Unfortunately, a remand is required in this case. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. §§ 5107(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2012). The Veteran is currently rated at 10 percent disability for the thoracolumbar hyperextension strain. According to the July 2013 Brief (located on Virtual VA), he and his representative contend his current rating does not accurately reflect his current symptomatology as his condition has worsened since the April 2008 VA examination. The Board notes that the Veteran was indeed afforded a VA examination of the spine in April 2008, over five years ago. Therefore, the Veteran should be afforded a VA examination to determine the current severity of his service-connected thoracolumbar hyperextension strain. 38 C.F.R. § 3.159(c)(4) (2012); Green v. Derwinski, 1 Vet. App. 121 (1991) (duty to assist may include conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one). Where the record does not adequately reveal the current state of disability, the fulfillment of the duty to assist includes providing a thorough and contemporaneous medical examination that considers the claimant's prior medical examinations and treatment. See Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994). The Board also recognizes that records may be absent from the claims file. The RO must secure any outstanding records and associated them with the claims files. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). VA treatment records since June 2010, have not been associated with the claims file. Thus, on remand, the RO must secure any outstanding records and associated with the claims file. All private treatment records that have not been associated with the claims file must also be obtained as well. Accordingly, the case is REMANDED for the following actions: 1. Contact all appropriate VA medical facilities, and obtain and associate with the claims file all relevant outstanding records of treatment, namely VA treatment records since June 2010. In addition, obtain all pertinent private treatment records which have not been obtained already. The AMC should contact the Veteran and request that he provide a completed release form (VA Form 21- 4142) authorizing VA to request copies of any treatment records from any private medical providers who have treated him for his claimed condition. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Notice must be provided to the Veteran. The notice must contain the identity of the records the VA was unable to obtain, an explanation of the efforts the VA made to obtain the records, a description of any further action the VA will take regarding the claim and a notice that the Veteran is ultimately responsible for providing the evidence. The AMC should also inform the Veteran that he can also provide alternative forms of evidence. 2. Once all outstanding records, if any, have been obtained and associated with the claims file, the Veteran should be scheduled for a VA examination to determine the current severity of his thoracolumbar hyperextension strain. The Veteran's claims file must be provided to the examiner upon examination and this should be acknowledged in the report. The examiner should describe in detail all symptomatology associated with the thoracolumbar hyperextension strain, including any associated neurological involvement. The VA examiner is also asked to address any lay statements within the claims file and those of the Veteran at examination. 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 at which pain begins. To the extent possible, 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. 3. Review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the AMC must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must 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). _________________________________________________ WAYNE M. BRAEUER 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).