Citation Nr: 1325901 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-29 682 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial rating greater than 20 percent for herniated nucleus pulposus (HNP), L4-5, with disc bulge at L5-S1. ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel INTRODUCTION The Veteran had active service from August 1979 to September 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which granted, in pertinent part, the Veteran's claim of service connection for HNP, L4-5, with disc bulge at L5-S1, assigning a 10 percent rating effective October 1, 2008. In an October 2011 rating decision, the RO assigned a higher initial 20 percent rating effective October 1, 2008, for the Veteran's service-connected HNP, L4-5, with disc bulge at L5-S1. Because the initial rating assigned to the Veteran's service-connected HNP, L4-5, with disc bulge at L5-S1, is not the maximum rating available for this disability, this claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). It appears that the Veteran and his family currently live in Germany. Accordingly, because this case involves a Veteran who lives overseas, the RO in Pittsburgh, Pennsylvania, retains jurisdiction in this appeal. 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 on his part. REMAND The Veteran contends that his service-connected HNP, L4-5, with disc bulge at L5-S1, is more disabling than currently evaluated. Having reviewed the record evidence, the Board finds that additional development is necessary before this claim can be adjudicated on the merits. A review of the Veteran's claims file shows that his most recent VA spine examination occurred in February 2010. The Board notes that VA's duty to assist under the VCAA includes obtaining an examination or medical opinion when necessary. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examination in February 2010, the Board finds that, on remand, he should be scheduled for updated VA examination to determine the current nature and severity of his service-connected HNP, L4-5, with disc bulge at L5-S1. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. The RO/AMC also should attempt to obtain the Veteran's up-to-date VA and private treatment records. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and ask him to identify all VA and non-VA clinicians who have treated him for HNP, L4-5, with disc bulge at L5-S1, since his service separation. Obtain all VA treatment records which have not been obtained already. Once signed releases are received from the Veteran, obtain all private treatment records which have not been obtained already. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). If any records obtained are not in English, then please have them translated. A copy of any translations should be included in the claims file. 2. After all outstanding records have been associated with the claims file, schedule the Veteran for an examination to determine the current nature and severity of his service-connected HNP, L4-5, with disc bulge at L5-S1. If possible, attempt to schedule his appointment close to where he lives (Vet lives in Germany). Please document steps taken to accomplish this and associate the report into the claims file. The claims file and a copy of this remand must be provided to the examiner for review. All appropriate testing should be conducted. The Veteran should be asked to provide a complete medical history, if possible. Based on a review of the claims file and the results of the Veteran's physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether the Veteran's service-connected HNP, L4-5, with disc bulge at L5-S1, is manifested by forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. The examiner also is asked to opine whether the Veteran's service-connected HNP, L4-5, with disc bulge at L5-S1, is manifested by unfavorable ankylosis of the entire thoracolumbar spine. The examiner should state whether the Veteran's service-connected HNP, L4-5, with disc bulge at L5-S1 results in intervetebral disc syndrome with incapacitating episodes. If so, the examiner should report the duration of these episodes during a 12 month period. This should be addressed from 2009 to the present. The examiner should note that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The examiner should identify all associated neurologic impairment and should describe the severity of such impairment. A complete rationale must be provided for any opinions expressed. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraph, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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). _________________________________________________ K. OSBORNE 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).