Citation Nr: 1337809 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 12-32 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a left hip disorder. 2. Entitlement to an increased rating in excess of 10 percent for degenerative joint disease (DJD) of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from June 1994 to July 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Huntington, West Virginia, Regional Office (RO) of the Department of Veterans Affairs (VA). 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. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND The claims file reflects that the Veteran has sought SSA disability benefits. Specifically, in a December 2011 mental health assessment, he reported that he had been denied SSDI on five separate occasions. The decisions of the SSA and the records it used in making its decisions are not of record. Such records may be relevant to the Veteran's claims and should be requested on remand. See Golz v. Shinseki, 590 F.3d 1317, 1323 (2010); 38 C.F.R. § 3.159(c)(2) (2013). The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Therefore, on remand, the AMC should associate with the claims file any VA medical records pertaining to treatment of a left hip disorder or the Veteran's service connected low back disability. Finally, the Board observes that the Veteran last underwent a VA examination for his back disorder in November 2010. Such does not necessarily negate the probative value of the examination. VAOPGCPREC 11-95 (1995) (the duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted). The Court has also held that a veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). There is no clear statement from the Veteran that his back disability has worsened. However, while the claim is being Remanded for additional development, and because he actively endorses low back symptoms, a new examination is deemed warranted. Accordingly, the case is REMANDED for the following action: 1. After appropriate authorization, request a copy of the Veteran's application for SSA disability benefits and all administrative records, information supplied by the Veteran, and clinical evaluations and records associated with the claim or claims. 2. Obtain complete VA treatment records since January 2012 and associate the records with the paper or electronic files. 3. Afford the Veteran an opportunity to identify any non-VA who has treated or evaluated him for his left hip disorder or service connected low back disability. After securing the necessary medical release, obtain the identified records. Any negative development should be annotated in the claims file. 4. The Veteran then must be afforded a VA examination of the lumbar spine. The examiner should review the claims and electronic files. The examiner should note the Veteran's subjective symptoms and address the following: A) Range of motion studies of the lumbar spine must be conducted. The examiner must describe any painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. B) The frequency and duration of any doctor-prescribed bedrest (i.e., incapacitating episodes) caused by lumbar spine DJD must be described. If no bedrest has been prescribed, the examiner should so state. C) The examiner must discuss whether there are any objective neurological abnormalities associated with the lumbar spine that are not attributable to service-connected service connection for radiculopathy of each lower extremity. For each identified neurologic abnormality not attributable to radiculopathy, a description of its symptoms and severity is requested. D) The examiner is requested to provide a discussion of the effects of the lumbar spine DJD on the ability of the Veteran to secure and follow a substantially gainful occupation. All opinions must be supported by a complete rationale. 5. After the above development has been completed, the AOJ/AMC should readjudicate the issues on appeal. If any determination is less than fully favorable, the Veteran must be furnished with a Supplemental Statement of the Case and given an opportunity to respond before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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). _________________________________________________ MICHAEL A. HERMAN 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).