Citation Nr: 1334591 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 11-24 168 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for the service-connected lumbosacral spine degenerative joint and disc disease. 2. Entitlement to a total disability evaluation based on individual unemployability by reason of service-connected disability (TDIU). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Esq. ATTORNEY FOR THE BOARD B. Rideout, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1970 to March 1972 and August 1974 and August 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the RO. In September 2013, Dr. S.W. provided an opinion that it was more likely than not that the service-connected low back disability prevented him performing substantially gainful employment. Hence, the claim for a TDIU rating has been identified on the preceding page as being a benefit sought on appeal. The Board also notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in the file shows VA medical records dated from May 2010 to January 2012 and November 2012 to March 2013. These records were considered in the April 2013 Supplemental Statement of the Case (SSOC). The remaining documents are either duplicative or irrelevant to the issues on appeal. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). A review of the claims file shows that the record contains conflicting opinions as to the severity of the service-connected low back disability. A VA examination report in March 2008 noted the presence of severe flare-ups and radiating pain, and qualified the Veteran for a 20 percent disability rating. VA medical records from approximately February 2012 through July 2012 seemed to indicate that that the Veteran had obtained relief from his symptoms through treatment. A follow up VA examination in February 2013 noted that the Veteran did not have flare-ups or radiating pain, and examination of the Veteran showed a general improvement in flexion and extension. In September 2013, the Veteran's private doctor examined the Veteran during a period of flare-up and noted radiating pain into the left leg. He also reported that the Veteran was unable to repeat flexion and extension testing due to pain. Therefore, the Board finds that an additional VA examination is necessary to determine the current extent and severity of the service-connected low back disability. To the extent that a claim for TDIU rating has been raised by the record, further development is required to address this matter. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with appropriate VCAA notice informing him of how a TDIU rating is assigned and the types of evidence needed to support such a claim. He should also be provided the opportunity to submit or identify any additional evidence that tends to support his claim for increase. 2. The RO should take appropriate steps to contact the Veteran in order to have him provide the names and addresses of all health care providers who have treated him for the service-connected low back disorder since 2010. After obtaining any necessary authorization from the Veteran, the RO should obtain copies of all records from each identified treatment source. A reasonable attempt should be made to obtain copies of all identified VA records or any records from Dr. S.W. If any records cannot be obtained after reasonable efforts have been made, the RO should issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and then allowed the opportunity to provide such records, as provided in 38 U.S.C.A.§ 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. The RO then should have the Veteran scheduled for a VA examination to ascertain the current severity and extent of the service-connected low back disability. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner(s). Any indicated evaluations, studies, and tests should be conducted. The examiner should report detailed clinical findings referable to the service-connected low back disability in terms of the Rating Schedule and should comment any impairment resulting in reduced industrial capacity. 4. After completing all indicated development, the RO should readjudicate the claims remaining on appeal including entitlement to a TDIU rating in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be issued a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ STEPHEN L. WILKINS 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) (2013).