Citation Nr: 1335379 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 11-10 302 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUE Entitlement to a rating in excess of 20 percent for lumbosacral strain. REPRESENTATION The Veteran represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.B. Freeman, Counsel INTRODUCTION The Veteran (appellant) served on active duty from July 1967 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the RO in Portland, Oregon, which denied an increased rating in excess of 10 percent for lumbosacral strain. During the pendency of the appeal, an increased evaluation from 10 percent to 20 percent effective the date of the claim for an increased rating was granted by a May 2012 rating decision. The Veteran has continued to appeal the disability rating. The Veteran testified before the undersigned at a March 2013 hearing at the RO. A transcript has been associated with the file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND The Board must remand this appeal to provide the Veteran with a new VA examination and to obtain recent VA treatment records relevant to his claim. The Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. See 38 C.F.R. § 3.327(a) (2013). The Veteran indicated in his March 2013 testimony that his service connected back had worsened in the previous two months. The last VA examination in connection with his claim was in May 2012. The Board finds that an additional evaluation would be helpful in resolving the issues raised by the instant appeal. All VA treatment records that could potentially be helpful in resolving a claim must be obtained. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990). The Veteran has been receiving treatment from VA on an ongoing basis. His March 2013 testimony was to the effect that he would receive another evaluation for his spine in the course of ordinary care in April 2013. The claims file reflects treatment only through May 2012. To correctly assess the Veteran's current disability, all records of treatment from May 2012 to the present must be considered. Therefore, those records must be obtained for the file. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's VA treatment records from the Portland VA Medical Center for treatment concerning the lumbosacral spine from May 2012 to the present. All efforts to obtain VA records should be fully documented, and the VA facility must provide a negative response if records are not available. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his lumbosacral spine disability. Sufficient evaluations should be scheduled to evaluate the Veteran's symptomatology. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner should identify the limitation of activity imposed by the Veteran's service-connected lumbosacral spine disability with a full description of the effect of the disabilities upon his ordinary activities. The examiner should fully describe any weakened movement, excess fatigability, and incoordination present. 3. Then, the RO should readjudicate the claim on the merits. If the benefits sought are not granted, the Veteran and his representative should be furnished a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2013). 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. 2013). _________________________________________________ K.J. ALIBRANDO 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).