Citation Nr: 1333173 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-30 305 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for lumbosacral strain, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Neichole SJ Linhorst, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1971 to May 1972, to include service in Vietnam. This claim comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In his substantive appeal, the Veteran requested a hearing before a Veterans Law Judge at the RO. A May 2011 letter informed him that his hearing was scheduled for July 15, 2011. However, in correspondence received on July 7, 2011 the Veteran's representative stated that the Veteran was unable to attend the hearing due to a personal conflict, and requested that the RO forward the Veteran's appeal directly to the Board for review and decision. This essentially cancelled the Veteran's hearing request. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this 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 While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claim. 38 C.F.R. § 19.9 (2013). The Veteran asserted in his June 2008 claim that his lumbosacral strain has increased in severity, and warrants a higher rating than the 20 percent evaluation currently assigned. The Veteran underwent a VA examination in September 2008 for his spine, and his claim for an increased rating was denied in September 2008. The Veteran filed a notice of disagreement in October 2008, asserting that his disability had increased in severity, and in support he noted that a relevant MRI was performed at VAMC Miami on October 3, 2008. The statement of the case issued in May 2009 addressed the denial of the increased rating, and failed to discuss any VAMC Miami records generated after September 16, 2008 despite the Veteran's assertion that a relevant MRI in October 2008 existed. Further, the Veteran indicated in his August 2009 appeal to the Board that he was still treated at VAMC Miami, the treatment had reportedly failed, and surgery was contemplated by his physicians. To ensure that the record reflects the current severity of the Veteran's service-connected lumbosacral strain, the Board finds that more contemporaneous VA orthopedic and neurological examinations, with findings responsive to the applicable rating criteria, are needed to properly evaluate this disability. As over 5 years have passed since the last VA examination for this claim in September 2008, a more recent examination is necessary to evaluate the current level of severity to adjudicate the Veteran's claim. This is essential as a VA examination too remote for rating purposes cannot be considered contemporaneous, especially in light of the Veteran's statements that there are MRI results from October 2008 that are relevant to his claim, as well as his report in August 2009 that his physicians contemplated surgery for his disability. Accordingly, the RO should secure the October 2008 MRI results and any updated VA and private treatment records pertinent to the claim, and arrange for the Veteran to undergo VA orthopedic and neurological examinations, by appropriate physicians, at a VA medical facility. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to complete an authorization and consent form to request any private records relevant to his lumbosacral strain claim. Request all VA and private records pertaining to the Veteran since September 2008, including any VAMC Miami MRI records from October 2008 and all other treatment notes, and associate them with the claims file. 2. 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 spine and peripheral nerves examination, by appropriate physicians, at a VA medical facility, to determine the current nature and severity of his service-connected lumbosacral strain. The entire claims file, to include a complete copy of this REMAND, must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should conduct range of motion testing of the spine (expressed in degrees). The physician should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the physician should indicate the point at which pain begins. In addition, the physician should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the physician should express any such additional functional loss in terms of additional degrees of limited motion. The physician should also identify any neurological impairment associated with the Veteran's lumbosacral strain. For each such identified impairment, the examiner should indicate whether the impairment constitutes a separately ratable manifestation of the lumbosacral strain disability; and, if so, the examiner should provide an assessment of the severity of the manifestation. Based on review of the Veteran's documented medical history and assertions, the examiner should indicate whether, at any time since the June 2008 claim for increase, the Veteran's service-connected lumbosacral strain disability has changed in severity; and if so, the approximate date(s) of any such change(s), and the extent of severity of the disability at each stage. Considering all orthopedic and neurological findings, the physician should also render findings particularly responsive to the criteria for rating intervertebral disc syndrome (IVDS)-specifically, comment as to the existence and frequency of any of the Veteran's incapacitating episodes (i.e., a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician). If the Veteran has incapacitating episodes associated with his lumbosacral strain disability, the examiner should specify whether, over the past 12 months, such episodes have had a total duration of (a) at least one week, but less than 2 weeks; (b) at least two weeks but less than 4 weeks; (c) at least 4 weeks but less than 6 weeks; or (d) at least 6 weeks. 3. After the Directives above have been completed, readjudicate the Veteran's claim in light of all pertinent evidence (to include all evidence added to the records since the last adjudication) and legal authority. 4. If the claim remains denied, issue to the Veteran and his representative a supplemental statement of the case (SSOC), and afford them the appropriate period of time to respond thereto before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ 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 your appeal. 38 C.F.R. § 20.1100(b) (2012).