Citation Nr: 1339385 Decision Date: 12/02/13 Archive Date: 12/13/13 DOCKET NO. 10-18 984 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a rating in excess of 20 percent for lumbosacral strain with degenerative joint disease (DJD) of the sacroiliac joints with residuals of a fracture of the 12th thoracic (T12) vertebra. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from August 1986 to October 1986 and from May 1987 to September 1994, with additional periods of inactive duty for training (INACDUTRA) and active duty for training (ACDUTRA) from 1995 to 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction of the case was subsequently transferred to the RO in Indianapolis, Indiana. In addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's appeal. A review of such does not reveal any additional documents pertinent to the present appeal with the exception of the October 2013 Appellant's Brief. In correspondence attached to the Veteran's May 2010 VA Form 9, he requested a local RO hearing with a hearing officer. However, in October 2010 he withdrew his request for a hearing in lieu of an updated VA examination, which was subsequently conducted in November 2010. Therefore, the Board finds that the Veteran withdrew his request for an RO hearing. In July 2013 the Veteran submitted additional evidence in the form of VA outpatient treatment (VAOPT) records from the Indianapolis, Indiana, VA Medical Center (VAMC) from September 2012 to June 2013, after the issuance of the June 2011 supplemental statement of the case. However, he also submitted a waiver of initial RO consideration of that evidence. See 38 C.F.R. § 20.1304(c) (2013). Therefore, the Board may properly consider such newly submitted evidence. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's increased rating claim for his low back disability so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Historically, a January 1995 rating decision granted service connection for a back condition, characterized as residuals of a fracture of the dorsal (thoracic) spine and assigned an initial 20 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Code 5285. The Veteran did not appeal the disability rating that was assigned. Also, the Veteran did not appeal an August 1996 rating decision which denied service connection for a lumbosacral strain. The 20 percent rating for T12 fracture residuals was confirmed and continued by rating decisions in November 2002 and January 2003, which the Veteran did not appeal. The February 2009 rating decision currently on appeal granted service connection for lumbosacral strain with DJD of the sacroiliac joints and recharazterized such disability to include such diagnosis, but confirmed and continued the 20 percent disability rating. The Board observes that so as to assess the current severity of his low back disability the Veteran was provided with VA rating examinations in October 2008 and November 2010. However, in the October 2013 Appellant's Brief, the Veteran's service representative noted that the most recent VA examination, in 2010, was now three years old. Also, as recent VA treatment records indicated that the Veteran was a candidate for a laminectomy and was to be evaluated for a spinal traction unit, a more up-to-date rating examination was requested. In this regard, the Veteran has submitted additional VA treatment that show that in June 2013 he underwent radiofrequency ablation of the medial branch nerves at L4, L5, and S1, bilaterally. Therefore, as a result of the service representative's contention and the submission of evidence indicating a possible worsening of the disability, the Board finds that the Veteran should be provided another VA examination so as to assess the current severity of his back disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Additionally, while on remand, the Veteran should be given another opportunity to identify or submit any additional treatment records referable to his low back disability. Thereafter, all identified records, to include VA treatment records from the East Orange/Lyons, New Jersey, VA facilities dated from April 2007 to December 2008 not already contained in the claims (which appears to contain records from such facility dated from April 2008 to September 2008) and the Indianapolis, Indiana, VA facility dated from October 2010 to the present (with the exception of records submitted by the Veteran in July 2013) should be obtained for consideration in his appeal. Finally, as indicated in the Introduction, additional VAOPT records relevant to the Veteran's claim were associated with the claim files subsequent to the June 2011 supplemental statement of the case. Therefore, upon readjudication of the Veteran's claim, all evidence received since the June 2011 supplemental statement of the case should be considered. Accordingly, the case is REMANDED for the following action: 1. The Veteran also should be given an opportunity to identify any healthcare provider who treated him for his service-connected back disability. After securing any necessary authorization from him, obtain all identified treatment records, to include to include VA treatment records from the East Orange/Lyons, New Jersey, VA facilities dated from April 2007 to December 2008 not already contained in the claims (which appears to contain records from such facility dated from April 2008 to September 2008) and the Indianapolis, Indiana, VA facility dated from October 2010 to the present (with the exception of records submitted by the Veteran in July 2013). All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining all outstanding records, the Veteran should be scheduled for an appropriate VA examination so as to determine the current level of severity of his lumbosacral strain with DJD of the sacroiliac joints with residuals of a fracture of the T12 vertebra. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All necessary tests should be conducted. The examiner should describe the nature and severity of all manifestations of the Veteran's lumbosacral strain with DJD of the sacroiliac joints with residuals of a fracture of the T12 vertebra. Range of motion findings should be reported. The examiner should comment on the existence of any functional loss due to pain, weakened movement, excess fatigability, incoordination, and painful motion or pain with use, and the extent and nature of any additional impairment from any of these, as well as during any flare-ups. The examiner should also address the nature and severity of all associated objective neurologic impairment, to include neurologic abnormalities of the lower extremities, erectile dysfunction, and/or bowel and/or bladder impairment associated with the service-connected lumbosacral strain with DJD of the sacroiliac joints with residuals of a fracture of the T12 vertebra. The examiner should also state whether the Veteran has intervertebral disc syndrome (IVDS). If so, the examiner should state whether this IVDS has previously resulted in incapacitating episodes, and if so, the duration of the episodes over the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. This should also be addressed for each year beginning in April 2007 to the present. The examiner should address the impact, if any, of the Veteran's service-connected back disability on his employability. The rationale for any opinion offered should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the June 2011 supplemental statement of the case. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. 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 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). _________________________________________________ A. JAEGER 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).