Citation Nr: 1336052 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 11-32 197 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating in excess of 10 percent for degenerative disc disease of the lumbar spine (hereinafter "lumbar spine disability"). ATTORNEY FOR THE BOARD Journet Shaw, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1982 to August 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's appeal. A review of the Virtual VA claims file reveals VA treatment records dated through September 2011, which have been considered by the RO in the November 2011 statement of the case. In several statements submitted in support of his claim, the Veteran has indicated that his "back" has worsened. In support of such statement, he has also submitted several medical reports outlining treatment for his cervical spine. The Board has construed the Veteran's statement and supporting documentation as raising a claim for an increased evaluation for his service-connected cervical spine disability. As such, this matter is referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran seeks an increased rating for his service-connected lumbar spine disability, which has been assigned a 10 percent rating. A review of the record reflects that further development is necessary prior to analyzing the claim on the merits. The Board notes that the Veteran, in his November 2009 notice of disagreement, asserted that his condition has changed since his last VA examination in October 2009. In support of his claim, the Veteran submitted several medical records including a note of his November 2009 emergency room visit for pain in his left shoulder and hand due to cervical radiculopathy as well as an MRI scan of his cervical spine. The Veteran asserted that a neurosurgeon who reviewed the results explained that he may need shots or surgery. The Board notes however, the issue on appeal concerns the Veteran's low back/lumbar spine and not his neck/cervical spine although service connection has been established for disabilities of both areas of the spine. Nonetheless, the Veteran also submitted VA medical records showing treatment in September and October 2009 for low back pain and he has clearly asserted that his back is worse than is reflected on the most recent VA examination in October 2009. Therefore, in light of the Veteran's report of a change in condition, the Boards finds that VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his lumbar spine disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). On remand, any outstanding medical records should also be requested and obtained, including any records from the neurosurgeon identified by the Veteran. Accordingly, this case is REMANDED for the following action: 1. Provide the Veteran with an opportunity to identify or submit any relevant private medical evidence that is not of record, including the records of his neurosurgeon. Send him the necessary authorizations for the release of any private treatment records not currently on file. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Obtain any outstanding relevant VA treatment records of the Veteran. All actions to obtain the requested records should be documented fully in the claims file. 3. After any additional records are associated either with the paper or virtual claims file, then schedule the Veteran for an appropriate VA examination to determine the nature, extent, frequency and severity of any orthopedic and neurologic impairment related to the Veteran's service-connected lumbar spine disability. The claims folder and a copy of this remand should be made available to and reviewed by the examiner. The examiner should identify all orthopedic and related neurological pathology found to be present in the Veteran's lumbar spine. The examiner should conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran's lumbar spine. In addition, if possible, the examiner should state whether the lumbar spine disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes. Further, the examiner should discuss all relevant neurological findings, and also state whether the Veteran has bowel or bladder problems related to his lumbar spine disability. The examiner is also asked to opine as to the nature and severity of any occupational impairment due to the Veteran's service-connected lumbar spine disability. A report should be prepared and associated with the Veteran's claim folder. 4. Thereafter, readjudicate the Veteran's increased rating claim for lumbar spine disability. If the benefits sought on appeal are not granted, issue a supplemental statement of the case and provide the Veteran an opportunity to respond. Thereafter, the case should be returned to the Board, if in order. 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). (Continued on the next page) 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). _________________________________________________ S. L. Kennedy 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).