Citation Nr: 1337557 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 13-09 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an evaluation in excess of 20 percent for lumbosacral strain. REPRESENTATION Veteran represented by: South Carolina Office of Veterans Affairs ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1993 to November 1999 with additional service in the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In a February 2013 rating decision, the RO granted an evaluation of 20 percent for lumbosacral strain, effective September 13, 2011, the date of receipt of the increased rating claim. Because the increased rating assigned to the Veteran's service-connected low back disability is not the maximum rating available for this disability, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran was afforded VA examinations in December 2011 and October 2012 in connection with her claim. In her April 2013 substantive appeal, the Veteran asserted that her symptoms had worsened in severity since the October 2012 VA examination. She stated that her health had declined and that she had requested leave from her employer under the Family and Medical Leave Act (FMLA). The record includes a March 2013 designation notice showing the Veteran's FMLA leave request had been approved. The United States Court of Appeals for Veterans Claims (Court) has held that "[w]here the veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination." Olson v. Principi, 3 Vet. App. 480, 482 (1992). While a new examination is not required simply because of the time that has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an assertion of an increase in severity since the last examination. VAOPGCPREC 11-95; see also Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination of the veteran that takes into account the records of prior examinations and treatment). In this case, the Veteran's assertions indicating an increase in the severity of her symptoms since the previous VA examination are enough to require a new VA examination. Additionally, in Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992), the Court found that VA's duty to assist specifically included requesting information from other Federal departments. Therefore, the RO should request from the Department of Labor any records associated with the grant of leave under the FMLA. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the Veteran's claims file or Virtual VA file all outstanding VA treatment records from the VA Medical Center in Charleston, South Carolina and any associated outpatient clinic dated from November 2012 to the present. All attempts to obtain those records must be documented in the claims file. 2. Contact the Veteran's employer, the U.S. Postal Service, and request a copy of any decision made pursuant to a claim of the Veteran for leave under the FMLA, as well as the medical records upon which any decision was based. All requests and responses, positive and negative, should be associated with the Veteran's claims file. Efforts to obtain these and any other Federal records must continue until the RO determines that the records sought do not exist or that further efforts to obtain the same would be futile. If it is so determined, then appropriate notice under 38 C.F.R. § 3.159(e) (2013) must be provided to the Veteran and her representative, and she must then be afforded an opportunity to respond. 3. Then, schedule the Veteran for a VA examination to determine the current level of severity of her service-connected lumbosacral strain. The claims file and a copy of this remand must be provided to the examiner in conjunction with the examination. Any medically indicated tests should be accomplished, and all pertinent symptomatology and findings must be reported in detail. The examiner should specifically state whether there is any evidence of favorable or unfavorable ankylosis of the spine and determine the active range of motion of the Veteran's lumbar spine in degrees, by use of a goniometer, noting by comparison the normal range of motion of the lumbar spine. If pain on motion of the lumbar spine is shown, the examiner should state at what degree the pain begins. It must also be determined whether there is weakened movement, excess fatigability, or incoordination attributable to the service-connected low back disability, expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. In addition, an opinion must be provided as to whether any pain found in the lumbar spine could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. Finally, it must be noted whether the Veteran experiences incapacitating episodes, as defined by 38 C.F.R. § 4.71a (2013), and if so, the frequency and total duration of such episodes over the course of the past 12 months. A complete rationale should be provided for any opinion or conclusion expressed. 4. After the development requested above has been completed, re-adjudicate the claim of entitlement to an evaluation in excess of 20 percent for lumbosacral strain. If the benefit sought on appeal remains denied, the Veteran and her representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond before the case is returned to the Board for appellate 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). 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). _________________________________________________ U. R. POWELL 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).