Citation Nr: 1339869 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 10-21 790 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a rating in excess of 40 percent for lumbosacral disc disease. ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from December 1972 to October 1980 and from January 1986 to January 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which continued the 40 percent rating assigned to the service-connected lumbosacral disc disease. The RO in Oakland, California, currently has jurisdiction of the claim. The record before the Board consists of paper claims files and an electronic file known as Virtual 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. REMAND Additional development is needed before the Board can adjudicate whether the Veteran is entitled to a rating in excess of 40 percent for lumbosacral disc disease. The Veteran has reported on several occasions that he was awarded benefits from the Social Security Administration (SSA) while his appeal was pending. See July 2011 VA Form 21-8940 with statement; January 2013 statement in support of claim. The medical and legal documents pertaining to the Veteran's application for SSA benefits have not been associated with the claims folder. The possibility that SSA records could contain evidence relevant to the claim cannot be foreclosed absent a review of those records. Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002). On remand, efforts should be made to obtain these records. 38 C.F.R. § 3.159(c)(2) (2013). Review of the paper and electronic claims files reveals that VA treatment records may be outstanding. Although records from the VA outpatient clinics in McClellan and Martinez (under the auspices of the VA Northern California Health Care System) have been obtained on several occasions during the pendency of the Veteran's claim, it appears that the RO may have limited its search for records in the VA Compensation and Pension Records Interchange (CAPRI) system to other disabilities associated with other claims (e.g. mental health and podiatry records). For the sake of completeness, and given the fact that the claim is being remanded for SSA records, the Veteran's complete VA treatment records from the VA Northern California Health Care System dated from August 2007 to the present must be obtained. The Veteran's lumbosacral disc disease was last evaluated in March 2010, almost four years ago. On remand, a more contemporaneous VA examination to assess the current severity of his lumbar spine disability must be conducted. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). This is also important to clarify whether the Veteran has any neurological impairment associated with the service-connected lumbosacral disc disease, as there are several references to radiculopathy without clinical documentation of such. It appears that the Veteran received a substantial amount of treatment from the U.S. Air Force and Tricare Clinic at McClellan Air Force Base in the years prior to when his claim for increased rating was received. Given that the claim for increased rating is being remanded, the Veteran should be asked whether he has received any treatment for his service-connected lumbosacral disc disease from this facility since February 2009. If he answers in the affirmative, efforts should be made to obtain those records. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2013). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's complete VA treatment records from the VA Northern California Health Care System, dated from August 2007 to the present. 2. Request all medical and legal documents pertaining to the Veteran's application(s) for SSA disability benefits. If no records can be found, indicate whether the records do not exist and whether further efforts to obtain the records would be futile. 3. Ask the Veteran whether he has received any treatment for his service-connected lumbosacral disc disease from the U.S. Air Force and Tricare Clinic at McClellan Air Force Base since February 2009. If he answers affirmatively, efforts should be made to obtain those records. 4. Schedule the Veteran for an appropriate VA examination to ascertain the current severity of his service-connected lumbosacral disc disease. The examiner must review the claims file and all relevant electronic medical records. Any indicated studies are to be performed. The examiner is to identify all residuals attributable to the Veteran's service-connected lumbosacral disc disease. The examiner is to report the range of motion measurements for the lumbar spine, in degrees. Any pain, weakened movement, excess fatigability or incoordination on movement must be noted, and the examiner should indicate whether there is likely to be additional range of motion loss due to any of the following: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is to describe whether pain significantly limits functional ability during flare-ups or when the lumbar spine is used repeatedly. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. In providing this information, the examiner must address the Veteran's written assertion that he has numerous bouts of disabling flare-ups that leave him totally helpless that he can barely ambulate or even drive and that often times he needs help from family and friends to help with simple life tasks and home treatment. The examiner is to identify any nerve(s) affected by the Veteran's service-connected lumbar spine disability and discuss the extent, if any, of paralysis of the nerves involved. The examiner is advised that the record contains several references to radiculopathy without clinical documentation of such. The examiner is to discuss whether the Veteran has any neurologic abnormalities, including, but not limited to, bowel or bladder impairment. The examiner must provide a comprehensive report, including complete rationales for all conclusions reached. If the examiner is unable to provide any of the requested information without resorting to speculation, it should be so stated. 5. Review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. 6. Finally, readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order. The appellant 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 U.S. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).