Citation Nr: 1329687 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 09-22 724 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased rating for lumbar spine degenerative disease with sciatic radiculopathy, currently evaluated as 20 percent disabling. 2. Entitlement to a total disability rating on the basis of individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran served on active duty from November 1971 to April 1978. This appeal to the Board of Veterans' Appeals (Board) arose from a July 2007 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Los Angeles, California, that denied the benefit sought on appeal. In as much as the Veteran is seeking the highest allowable rating, his claim includes a claim of entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The July 2007 rating decision also denied entitlement to service connection for a cervical spine disorder which the Veteran also appealed. An RO Decision Review Officer, in a June 2011 rating decision, granted service connection for cervical spine osteoarthritis and assigned an initial 10 percent rating, effective in January 2006. There is no indication in the Virtual or paper claims file that the Veteran appealed either the initial rating or the effective date. Hence, the cervical spine issues is not before the Board and will not be addressed in the action below. See 38 C.F.R. § 20.200 (2012). The Veteran appeared at a Travel Board hearing in July 2012 before the undersigned Veterans Law Judge. A transcript of the hearing testimony is of record and has been reviewed. The Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his appeal. The Board has considered the documents in both files while reviewing this appeal. 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 Evidence in the claims file indicates the need for further development. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Masors v. Derwinski, 2 Vet. App. 181 (1992). Specifically, there are records from the Social Security Administration (SSA) that should be associated with the claims folder. Additionally, the hearing testimony presented in August 2012 indicates that the Veteran's low back symptomatology has worsened since his last VA examination. Accordingly, a new examination is warranted. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should contact the Veteran and obtain the names, addresses, and approximate dates of treatment of all health care providers, VA and non-VA, who treated the Veteran for a lumbar spine disorder since January 2006. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. The AMC/RO shall endeavor to avoid obtaining treatment records already in the claims file. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 2. The AMC/RO should obtain from the Social Security Administration the records pertinent to the Veteran's claim for Social Security disability benefits, as well as the medical records relied upon concerning that claim. All efforts to obtain these records should be documented in the claims file. 3. After the above is complete, AMC/RO shall arrange an examination of the Veteran by an appropriate examiner to determine the current severity of the Veteran's lumbar spine disability. All indicated diagnostic tests should be conducted. The claims file should be made available to the examiner for review as part of the examination. As part of the examination, the examiner is asked to opine whether there is at least a 50-percent probability that the Veteran's lumbar spine disability renders him unable to obtain and maintain substantially gainful employment. Please provide an explanation for the opinion rendered. 4. After completion of all of the above, the AMC or RO should re-adjudicate the claims on appeal. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a Supplemental statement of the case (SSOC). The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He 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). (CONTINUED ON NEXT PAGE) 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).