Citation Nr: 1332818 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-01 919 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a higher initial rating for a low back strain, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from March 1986 to February 1989. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for low back strain and awarded a 10 percent evaluation, effective October 8, 2008, and denied service connection for diabetes mellitus, type II. The Veteran perfected an appeal with regard to the low back strain claim, but withdrew his claim of service connection for diabetes mellitus in a November 2009 statement, prior to the issuance of the Statement of the Case. Moreover, the Veteran only appealed the low back strain issue in his December 2009 VA Form 9 (substantive appeal). As such, only the low back strain issue remains on appeal, as reflected on the title page. The Veteran was scheduled to testify at a Travel Board hearing before a Veterans Law Judge on July 12, 2011. In a May 2011 statement, he withdrew that request. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. This paperless file contains additional relevant documents, including VA treatment records, which have been reviewed in conjunction with this claim. In January 2012, and again in January 2013 the Board remanded this case to address due process matters; specifically to afford the Veteran's representative the opportunity to submit a more comprehensive VA Form 1-646. 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 The Board finds that it is once again necessary to remand this matter. The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. In this case, the Board notes that additional evidence has been received in the electronic folder in June 2013, which suggests a worsening of the lumbar spine disorder since the Veteran last received a VA examinations to address the severity of it, with the most recent evaluation of the orthopedic disability of the back done in November 2008 and the most recent examination addressing possible neurological manifestations related to the back disorder done in June 2010. Of note there is a December 2012 VA record showing greatly increased symptoms with pain at a 7/10 level radiating to the right leg, with pain exacerbated by turning, and an impression of low back pain with X-ray scheduled and bed rest recommended. X-ray from December 2012 now showed degenerative changes, where previous evidence did not. The Veteran's representative has asserted worsening of the disability in a February 2013 VA 646 by attaching a copy of the December 2012 X-ray showing degenerative changes of the spine. The Board notes that is has been nearly three years since the last examination, limited to neurological findings and more than five years since an orthopedic evaluation was done. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that an additional VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected lumbar spine disorder. On remand, the Veteran should also be given the opportunity to identify and/or submit any ongoing treatment records. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service-connected lumbar spine disability since December 2012. After acquiring this information and obtaining any necessary authorization, the RO should obtain and associate these records with the claims file. The RO should obtain any outstanding VA medical records pertaining to a lumbar spine disability. 2. After obtaining all identified and available medical records, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service- connected lumbar spine degenerative disc disease. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected lumbar spine disability. The examiner should report all signs and symptoms necessary for rating the Veteran's disability under the rating criteria. In particular, the examiner should provide the range of motion of the lumbar spine in degrees and state whether there is any form of ankylosis. He or she should also indicate whether the Veteran has muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. In addition, the examiner should state the total duration of incapacitating episodes over the past 12 months and identify and describe all neurological manifestations of the service-connected spine disability. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The RO should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). _________________________________________________ J. A. MARKEY 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).