Citation Nr: 1336972 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-19 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased evaluation for lumbosacral strain, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from September 1986 to April 1988. The appeal comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, denying an increased evaluation for lumbosacral strain. The issues of entitlement to service connection for thoracic and cervical spine disabilities have been raised by the record, but have not been adjudicated by the RO. The Veteran first raised informal claims in a May 2008 submitted written statement. A VA Form 9 submitted in April 2010 also raised these issues. They were also tangentially raised by the Veteran at his April 2010 VA examination, when he complained of symptoms of the entire spine and expressed disappointment that only the lumbar spine was being addressed. It thus appears that informal claims have been pending since the May 2008 submission, with no responsive action by the RO. The Board does not have jurisdiction over these issues, and they are referred to the RO for appropriate action. The appeal is remanded to the RO via the Appeals Management Center in Washington, DC. REMAND The Veteran was most recently afforded a VA examination addressing his lumbosacral strain in April 2010. The examiner noted that the claims file was unavailable for review. The Veteran's authorized representative alerted VA of this circumstance in its statement in support of claim submitted in May 2010. This failure of the examiner to review the claims file has not been remedied by subsequent addendum to that examination, or by a more recent examination. Once VA provides an examination in a service connection claim, the examination must be adequate or VA must notify the veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA regulations require that each disability be viewed in relation to its history both in the examination and in the evaluation of the disability. 38 C.F.R. § 4.1 (2013). It is essential that the examining physician have the Veteran's medical records to review in conjunction with the examination, so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Board thus finds that the remand is required to afford the Veteran an examination based on review of the claims file. Because nearly four years has elapsed since the most recent examination, asking the prior examiner to merely review the claims file at this late date and provide an addendum opinion could not realistically be expected to produce the equivalent of an examination informed by review of the claims file. Additionally, a contemporaneous examination may reasonably be required based on this time interval since the most recent examination. Accordingly, a new, contemporaneous examination is required. See Green, 1 Vet. App. at 124. Based on information that the Veteran had requested or received SSA disability benefits, the RO in August 2009 sent SSA a request for such records, with a reply in August 2009 that records could not be located. On this basis the RO in September 2009 informed the Veteran that his claim would be decided without the benefit of SSA records review. In a telephonic contact with the Veteran in February 2010, the Veteran indicated that he had received treatment at an outpatient clinic in Dothan, Alabama, as well as past treatment at the VA Medical Centers (VAMC) in Tallahassee, Florida, and Tuskegee, Alabama. VA or private treatment records, as indicated by the Veteran, should be sought in furtherance of the claim. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claim. Based on his response, any additional VA or private treatment records must be obtained and associated with the claims file, with the Veteran's assistance, as appropriate. Regardless of his response, the RO must attempt to obtain the records of treatment received treatment received at an outpatient clinic in Dothan, Alabama, as well as past treatment at the VAMCs in Tallahassee, Florida, and Tuskegee, Alabama. The RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. If the RO is unable to secure any of the identified records, the RO must notify the Veteran and (a) identify the information the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain that information; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that the Veteran is ultimately responsible for providing information. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the Veteran must be afforded an appropriate VA examination to address the nature and severity of his service-connected lumbosacral strain. The claims file and all electronic records, including any additional evidence obtained, must be made available to the examiner for review. All tests and studies deemed necessary by the examiner must be conducted. The tests and studies performed, and their results, must be included and discussed in the examination report. The examiner must record pertinent medical complaints, symptoms, and clinical findings, including range of motion, and comment on the functional limitations, if any, caused by the lumbosacral strain. Regarding the spine, the examiner must determine the range of motion of the Veteran's thoracolumbar spine in degrees, using a goniometer and noting by comparison the normal range of motion, with standard ranges provided for comparison purposes. If pain is present on any motion, the Veteran must be instructed to indicate to the examiner at what degree the pain begins and the examiner must report this finding. The examiner must address whether there is any weakened movement, incoordination, excess fatigability, or pain on movement as a result of the Veteran's service-connected lumbosacral strain after repetitions of the range of motion tests. The functional impairment due to weakened movement, incoordination, excess fatigability, or pain on movement must, if feasible, be assessed in terms of additional degrees of limitation of motion lost. With respect to any subjective complaints of pain, the examiner must comment on whether pain is visibly manifested on movement of the affected part, the presence and degree of, or absence of, muscle atrophy attributable to the service-connected lumbosacral strain, the presence or absence of changes in condition of the skin indicative of disuse, and the presence or absence of any other objective manifestations that would demonstrate disuse or functional impairment due to pain attributable to the lumbosacral strain. The examiner must specifically state whether any neurologic symptoms found are caused by the Veteran's service-connected lumbosacral strain, or are due to other causes. The examiner must also discuss the nature and severity of any intervertebral disc syndrome (IVDS) found and/or incapacitating episodes due to IVDS, if any. Additionally, if IVDS is present, the examiner should address whether this is part and parcel of the Veteran's lumbosacral strain, or is attributable to his lumbosacral strain, or alternatively is of independent origin. If of independent origin, the examiner should address whether symptoms of IVDS may be differentiated from those of the Veteran's service-connected lumbosacral strain. In addition, the examiner must address the frequency and duration of any IVDS found and/or incapacitating episodes in the past 12 months due to IVDS, as shown by any submitted medical letters addressing the necessity of bed rest for treatment of intervertebral conditions. Any radiculopathy present attributable to the lower back disability should also be addressed. The examiner must also address the degree to which the Veteran's service-connected lumbosacral strain impacts his capacity to obtain or sustain gainful employment. Relevant findings and analysis must be provided. 3. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2013). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken above, the claims on appeal must be readjudicated. If either issue on appeal is denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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).