Citation Nr: 1325658 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 09-19 696 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES Entitlement to an evaluation in excess of 40 percent for chronic back strain with a history of degenerative disc disease. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran had active service from April 1975 to October 1978 and from February 1980 to October 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2007 rating decision of the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). Jurisdiction was later transferred to the RO in Winston-Salem, North Carolina. The Veteran was scheduled for a hearing before a Veterans Law Judge at the RO in July 2011. He failed to report. Thus, his hearing request is deemed withdrawn. 38 C.F.R. § 20.704 (2012). The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. The representative's Informal Hearing Presentation is included in Virtual VA. It does not contain any other evidence not already in the claims folder or considered by the RO. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran contends that he is entitled to an evaluation in excess of 40 percent for his service connected back strain with a history of degenerative disc disease. He argues that the August 2007 examination afforded him as part of his claim was perfunctory and insufficient, and he asks that he be scheduled for a new examination. His representative also believes that a new examination is necessary. After a review of the record, the Board agrees with the Veteran that the August 2007 examination is inadequate for rating purposes. First, the examination is now six years old. Secondly, the examiner states that low back pain radiates down the right leg, but continues on in the same sentence to note diabetic neuropathy of both feet. He states that there is no evidence of degenerative disc disease, but also notes that according to the Veteran degenerative disc disease was shown on a previous magnetic resonance imaging (MRI) study. The Board is unable to determine from these statements whether or not the Veteran has any neurological symptoms associated with his back disability. Finally, the claims folder was not provided to the examiner, which prevented him from seeing the January 2005 MRI study he referenced in his report and perhaps kept him from stating which portion of the Veteran's neurologic complaints were attributable to his service connected leg disability and which portion were due to non service connected diabetes. Therefore, this appeal must be returned in order to provide the Veteran an adequate rating examination. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify all sources of treatment for his service connected back disability from 2009 to the present. After obtaining any necessary permission from the Veteran, obtain those records and associate them with the claims folder. For any private records identified but are unable to be obtained, the Veteran must be notified that it is ultimately his responsibility to obtain and submit those records. All records identified by the Veteran must either be obtained or certified to be unobtainable. 2. After any records requested above have been obtained and associated with the claims folder, schedule the Veteran for a VA examination of his service connected back disability. The claims folder must be provided to the examiner for use in the study of this case. All indicated tests and studies should be conducted. The range of motion of the back must be provided in terms of degrees for all necessary measurements. Any additional limitation of function due to pain, weakness, incoordination or excess fatigability should also be identified in terms of additional loss of degrees. Moreover, if the Veteran reports periods of flare-up, the examiner must estimate any additional loss of motion, in degrees, as a result of such flare-ups. The examiner should also note the presence or absence of ankylosis and must also state whether it is as likely as not that the Veteran currently has degenerative disc disease and/or intervertebral disc syndrome. The examiner should specifically state whether or not the Veteran has any neurologic symptoms due to his back disability and, if so, whether they can be differentiated from any symptoms due to diabetes mellitus. Finally, the examiner should state whether or not the Veteran has experienced incapacitating episodes due to his back disability and, if so, the total duration of these episodes over the past 12 months. 3. After the development requested above has been completed to the extent possible, review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran 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). _________________________________________________ ERIC S. LEBOFF 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).