Citation Nr: 1335734 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-09 408 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased rating for lumbar degenerative joint disease, spondylolisthesis, and strain, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Robert E. P. Jones, Counsel INTRODUCTION The Veteran served on active duty from August 1962 to September 1965, July 1967 to April 1970, and from October 1970 to September 1977. This matter comes before the Board of Veterans' Appeals (Board) from a March 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 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 Veteran asserts that he is entitled to a rating in excess of 20 percent for his lumbar spine disability. He was provided a VA examination of his lumbar spine in February 2009. In August 2013, the Veteran's representative pointed out that it had been over 54 months since the Veteran had been provided a VA examination and requested that the Veteran be provided a new VA examination. The representative asserted that the February 2009 VA examination was too old to adequately evaluate the Veteran's spinal disability. The Board notes that the February 2009 VA examination report did not indicate that the Veteran wore a back brace. An August 2010 VA outpatient record in the Veteran's virtual electronic file notes that the Veteran was getting a back brace. This is an indication that the Veteran's lumbar spine disability has increased in severity and that a new VA examination of the spine should be obtained to evaluate the current severity. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The Board notes that the Veteran's virtual electronic file contains VA medical records concerning the Veteran's back disability that are dated subsequent to the February 2010 statement of the case. These records must be reviewed by the AMC, and the AMC must issue a supplemental statement of the case showing review of these records. The Veteran's virtual electronic file contains VA treatment records dated up until March 27, 2012. The Veteran's updated VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file the Veteran's VA treatment records dated from March 28, 2012 to present. 2. When the above has been accomplished, afford the Veteran a VA examination to determine the current nature and severity of his lumbar spine disability. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should also elicit a complete history from the Veteran, the pertinent details of which should be included in the examination report. The examiner's report should fully set forth all current complaints and pertinent clinical findings, and should describe in detail the presence or absence and the extent of any functional loss due to the Veteran's lumbar spine disability. In particular, the examiner should indicate the point during range of motion testing that motion is limited by pain. The examiner should comment on any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner's report should include a description of the above factors that pertain to functional loss due to the low back disability that develops on repetitive use or during flare-up. Based on current examination of the Veteran as well as review of the evidence of record, the examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. If flare-ups are not observed during the examination, the examiner should refer to earlier medical records and to the Veteran's lay statements to determine the severity of his flare-ups, and portray additional lost range of motion during such flare-ups. The examiner should also describe the frequency and duration during the previous year of any incapacitating episodes caused by the Veteran's low back disability, meaning episodes requiring physician prescribed bed rest. A discussion of the complete rationale for all opinions expressed should be included in the examination report. 3. Thereafter, reconsider the Veteran's claim. If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided a supplemental statement of the case and be afforded the appropriate period of time to respond. The supplemental statement of the case should include review of all evidence received since issuance of the February 2010 statement of the case. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ BETHANY L. BUCK 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).