Citation Nr: 1329477 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 06-17 999A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to a rating in excess of 20 percent for traumatic arthritis and degenerative disc disease of the lumbosacral spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to October 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which, in pertinent part, continued a 20 percent evaluation for the service- connected lumbosacral spine disability. Jurisdiction over the claims file is currently held by the RO in Houston, Texas. In November 2009 and August 2011, the Board remanded the case for further action by the originating agency. The case returned to the Board in February 2012 when the claim for an increased rating for the service-connected traumatic arthritis and degenerative disc disease of the lumbosacral spine was denied. The Veteran appealed the February 2012 denial to the Court of Appeals for Veterans Claims (Court). In September 2012, the Court granted a Joint Motion for Remand (JMR) filed by the parties, which requested that the portion of the February 2012 decision that denied a rating in excess of 20 percent for the low back disability be vacated and remanded. The Board remanded the claim in April 2013 for additional development. A June 2013 supplemental statement of the case denied the claim. 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 preliminary review of the record indicates that this claim requires additional development. The April 2013 remand requested that the Veteran be scheduled for a VA spine examination to determine the current severity of all manifestations of his service- connected thoracolumbar disability. The remand specified that the claims file must properly document all notifications to the Veteran as to the scheduled VA examination and any associated tests. A record in the claims file provides that a June 2013 DBQ back conditions examination and DBQ medical opinion were cancelled because the Veteran failed to report. However, the record before the Board does not include a notification letter for the June 2013 examination. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders). As a result, the Board cannot conclude that the Veteran was properly informed of the VA examination. In addition, the numerous past notice and address problems in this case, which the JMR documented in detail, also require that the Board ensure that the Veteran is provided notice of any VA examination. Thus, the Veteran must be afforded another opportunity to appear for a VA examination. The RO should ensure that a copy of the notification letter is associated with the record. The Veteran is hereby notified that when a claimant fails to report for an examination scheduled in conjunction with a reopened claim for a benefit which was previously disallowed, the claim shall be disallowed. 38 C.F.R. § 3.655 (2013). If a claimant wishes assistance, he cannot passively wait for it in circumstances where he should have information that is essential in obtaining the putative evidence. Wamhoff v. Brown, 8 Vet. App. 517 (1996); Wood v. Derwinski, 1 Vet. App. 190 (1991). Under the law, a claimant for VA benefits has the specific responsibility to present and support the claim. 38 U.S.C. § 5107(a). The Veteran is advised that his failure to report for any scheduled examination without good cause may result in the claim being denied. In August 2013 correspondence, the Veteran stated that he was in VA treatment in Las Vegas at the VISN 22 medical center, in conjunction with Medicare/VA joint treatment at the Mayo Clinic, North Phoenix Medical Center and the Mayo Clinic Shea Campus in Scottsdale/Fountain Hills, Arizona. Statutes and regulations require that VA assist a claimant by obtaining medical records that are necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. There are also heightened obligations to assure that the record is complete with respect to Federal Government records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). VA treatment records are deemed to be constructively of record in proceedings before the Board. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Also in August 2013, the Veteran submitted a copy of an August 2013 Statutory Durable Power of Attorney he had sent to a San Antonio, Texas, private attorney. The Veteran's cover page to the attorney referred to a final divorce decree. The Board advises the Veteran that according to documentation currently in his claims file the Disabled American Veterans remain his representative for VA claims. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the dates and locations of all VA treatment. Then, obtain and associate with the Veteran's claims file and Virtual VA eFolder copies of all VA medical records that have not been associated with the record, to include those identified in his August 2013 correspondence. 2. Schedule the Veteran for a VA spine examination to determine the current severity of all manifestations of his service-connected thoracolumbar disability. The claims folder must be made available to and reviewed by the examiner. The Veteran should be advised that failure to report for a scheduled VA examination without good cause may have adverse consequences for his claim, and the claims file must properly document all notifications to the Veteran as to the scheduled VA examination and any associated tests. The examination must include range of motion studies of the thoracolumbar spine. In reporting the range of motion findings, the examiner must comment on the extent of any painful motion, functional loss due to pain, weakness, excess fatigability, and additional disability during flare-ups. The examiner should further address whether, and if so to what extent, there is ankylosis of the thoracolumbar spine. The examiner should discuss whether the Veteran's disability has resulted in doctor-prescribed bedrest; if so, the examiner should address the frequency and duration of such bedrest in the past 12 months. The examiner should also identify any evidence of neurological disorders, including neuropathy in both lower extremities and incontinence of the bowel or bladder due to the service- connected back disability. Any sensory or motor impairment in the lower extremities due to service-connected disability should be identified. The examiner should provide an opinion with respect to any symptoms due to nerve root impingement as to whether they are mild, moderate, moderately severe, or severe. The examiner should determine whether a MRI and/or EMG are required to test for neurological impairment. If the tests are ordered, the Veteran must receive proper notice of the time and place of the tests. The examiner is requested to provide a complete rationale for any opinion expressed based on the examiner's clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. Ensure that a copy of the notification letter for the VA examination, as well as the notification letters for any other examinations or tests that are required (e.g., an MRI or EMG) are included in the claims folder. 4. Then, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case and afforded an opportunity to respond. The case should 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). _________________________________________________ M. E. LARKIN 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).