Citation Nr: 1340879 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 06-30 662 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to a rating in excess of 10 percent for lumbar spondylosis, prior to August 8, 2008, and in excess of 20 percent thereafter. ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from March 1984 to May 1987. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a rating decision issued in February 2006 by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In July 2008, November 2010, February 2012, and March 2013, the Board remanded the appeal for further development, and it now returns to the Board for appellate review. The February 2006 rating decision denied a rating in excess of 10 percent for the Veteran's service-connected lumbar spine disability. While his appeal was pending, an August 2008 rating decision assigned a 20 percent evaluation, effective August 8, 2008. However, as this rating is still less than the maximum benefit available, the appeal is still pending. AB v. Brown, 6 Vet. App. 35, 38 (1993). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran's appeal has been remanded four times. In the most recent remand issued in March 2013, the Board noted that the Veteran did not report to a VA examination scheduled after the February 2012 remand. The Board then observed that a May 2012 treatment note indicated that a Social Worker visited the Veteran in a correctional facility in Guaynabo. The record did not indicate at what point the Veteran was incarcerated, although it did report that his release was scheduled for December 2012. The Board noted that the most recent VA treatment record in the file dated prior to May 2012 is dated in April 2011. In light of these facts, the appeal was again remanded to determine the Veteran's whereabouts and to schedule another VA examination. The record reveals that the Veteran's address was verified with the Veteran via a phone call in April 2013. A VCAA letter was then issued that was not returned by the postal service and, therefore, presumed delivered. In addition, there is a copy of the VA examination request on file. However, there is no copy of the letter sent to the Veteran by the VAMC informing him of the date and time of the examination, and from this point forward, the Board is uncertain as to the development of the Veteran's case. A supplemental statement of the case (SSOC) was issued in July 2013, and in August 2013, a letter was sent to the Veteran by the Board; both of these documents were returned as undeliverable. Moreover, the Board does not know what happened with respect to the Veteran's VA examination. The July 2013 supplemental statement of the case does not acknowledge that the examination was requested or discuss any results, only that an examination was ordered by the Board. The Board does not know if the examination was completed. In addition, as noted above, the most recent VA treatment record is the May 2012 social work note. Therefore, all subsequent VA treatment notes from the San Juan VA Medical Center (VAMC) dated from May 2012 forward should be associated with the claims file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Consequently, the Board again remands the appeal so that additional VA treatment records may be obtained, the report from any completed VA examination from 2013 may be added to the claims file, another VA examination may be scheduled if appropriate, and an supplemental statement of the case issued that considers all evidence received since the SSOC issued in October 2012. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file all VA treatment notes from the San Juan VAMC and any associated outpatient clinics, dated from May 2012 to the present. All requests and responses, positive and negative, must be documented in the claims file. 2. Once again, verify the Veteran's current address using all available means necessary. Document all efforts, as well as the Veteran's current address, in the claims file. 3. Associate the examination report for the 2013 VA examination or any documentation related to the exam's cancellation with the claims file, including a copy of the notice letter sent to the Veteran by the VAMC. All requests and responses for this documentation, positive and negative, must be documented in the claims file. 4. If a VA examination was not completed after the March 2013 remand and the RO has determined the Veteran's current location, he should be scheduled for the appropriate VA examination to determine the current nature and severity of his service-connected low back disability. The examiner should specifically address whether the Veteran has radiculopathy as a result of his service-connected low back disability. The claims folder must be made available to the examiner for review of pertinent documents therein in connection with the examination. The examination report must reflect that such a review was conducted. All indicated studies should be completed. 5. If the Veteran is still incarcerated, all necessary efforts must be made to conduct the appropriate VA examination as required by VA law and procedure, including (1) attempting to arrange transportation of the claimant to a VA facility for examination; (2) contacting the correctional facility and having their medical personnel conduct an examination according to VA examination work sheets; or (3) sending a VA or fee-basis examiner to the correctional facility to conduct the examination. See Bolton v. Brown, 8 Vet. App. 185, 191 (1995); VA Adjudication Manual, M21-1MR, Part III.iv.3.A.11.d. 5. After completing the above actions and any other development that may be indicated by any response received as a consequence of the action taken in the paragraphs above, the claim of entitlement to a disability rating in excess of 10 percent prior to August 8, 2008 and in excess of 20 percent from August 8, 2008 to the present for lumbar spondylosis should be readjudicated. If any claim remains denied, a supplemental statement of the case should be provided to the Veteran. After he has had an adequate opportunity to respond, the case should be returned to the Board for further 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). _________________________________________________ L. M. BARNARD Acting 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) (2013).