Citation Nr: 1330210 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 11-08 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial compensable disability rating for low back strain with degenerative disc disease. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jebby Rasputnis, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1966 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York in August 2010. In that rating decision, the RO granted service connection for the Veteran's low back disability and assigned an initial non-compensable rating, effective March 22, 2010. The Veteran submitted a notice of disagreement (NOD) in September 2010. The RO subsequently issued a January 2011 statement of the case (SOC). In March 2011, the Veteran filed a substantive appeal (VA Form 9). The Veteran testified at a Travel Board hearing in August 2011 before the undersigned Veterans Law Judge at the RO. A transcript of that proceeding has been associated with the claims file. 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 Board's review of the claims file reveals that further RO action in regard to the appeal is warranted, even though such will, regrettably, further delay an appellate decision. Pursuant to 38 C.F.R. § 3.327(a) (2013), examinations will be requested whenever VA determines that there is a need to determine the exact severity of a disability. See also 38 C.F.R. § 3.159 (2013). Because the last examination was conducted in April 2010, more than three years ago, and the Veteran has contended that the results of that examination do not reflect the current severity of his low back disability, further examination is warranted. Prior to arranging for the Veteran to undergo further examination, to ensure that all due process requirements are met and that the record before the examiner is complete, the RO should undertake appropriate action to obtain all pertinent, outstanding records. The record reflects that there are outstanding VA medical records which may be pertinent to the claim. Specifically, the claims file indicates that the Veteran receives treatment from the VA Community Based Outpatient Clinic in Dunkirk, but does not contain any VA treatment records dated after March 31, 2009. The RO should follow the current procedures prescribed in 38 C.F.R. § 3.159(c) (2013) as regards requests for records from Federal facilities. During the August 2011 hearing, the Veteran testified that he also received private treatment for his back from a Dr. Mix and a Dr. Gerould. Although he stated that he had not seen either of those private practitioners in the last five years (which pre-dates the appellate period), more than two years have passed since he provided that testimony. Therefore, the RO should again ask that the Veteran identify any additional private medical evidence pertinent to the claim on appeal. The RO should also inform the Veteran that, although he has already completed authorizations for release of records from Dr. Mix and Dr. Gerould, those authorizations have since expired and new releases are required. Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to readjudicating the claim in light of all pertinent evidence and legal authority. Accordingly, the case is REMANDED for the following action: 1. Gather any outstanding VA treatment records from the Upstate New York VA Health Care system. Note that the last VA record within the claims file is dated March 31, 2009. Associate any available records with the claims file. If no such records are available, include documentation of the unavailability in the claims file. 2. Afford the Veteran an additional opportunity to submit any private evidence that is not within the current record. Provide him with forms authorizing the release of any outstanding private treatment records, to include, but not limited to, updated records from Dr. Mix and Dr. Gerould. Make at least two (2) attempts to obtain records from any identified source and associate available records with the claims file. If any records are not available, inform the Veteran and request that he submit any copies in his possession. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo a VA spinal disorders examination, by an appropriate medical professional, at a VA medical facility. The entire claims file must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented assertions and medical history, to specifically include any pertinent records of private treatment. The examiner should conduct range of motion testing of the thoracolumbar spine (expressing the results in degrees) and render specific findings as to any objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination as well as any additional functional loss due to repeated use or flare-ups. As medical evidence reflects that a component of the Veteran's service-connected disability is disc impairment, the examiner also should specifically comment as to the existence and frequency of any incapacitating episodes (i.e., a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician). The examiner must indicate whether the Veteran has any chronic neurological impairment as manifestations of the service-connected spinal disability and, for any such manifestation, provide an assessment of severity (i.e. mild, moderate, moderately severe, or severe). Following the above assessments, the examiner should discuss whether, considering all pertinent lay and medical evidence, there has/have been any change(s) in the severity of the service-connected low back disability since the last, April 2010, VA examination. If so, the examiner should identify the approximate date(s) of any such change(s) and provide an assessment of the severity of the disability for each approximate date. The examiner should set forth all findings and test results, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the Veteran fails to report to the scheduled examination, obtain, and associate with the claims file, copies of any notices of the date and time of the examination sent to him by the pertinent VA medical facility. 6. Readjudicate the remanded claim, to include consideration of any appropriate staged ratings. If the claim is not granted in full, the Veteran and his representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop the claim is both critical and appreciated. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). 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). _________________________________________________ MARJORIE A. AUER 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 the appeal. 38 C.F.R. § 20.1100(b) (2012).