Citation Nr: 1342386 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 10-28 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 20 percent prior to June 19, 2010, and in excess of 30 percent thereafter, for service-connected cervical strain. 2. Entitlement to a rating in excess of 10 percent prior to June 19, 2010, and in excess of 40 percent thereafter, for service-connected lumbar strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Eli White, Associate Counsel INTRODUCTION The Veteran served on active duty from March 2001 to March 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In June 2009, the Veteran requested a hearing before a Decision Review Officer (DRO); however, she withdrew that request in September 2009. In September 2010, the Veteran requested a videoconference hearing before the Board, and the RO scheduled the Veteran's hearing for May 2, 2011. The Veteran failed to report for the hearing, without explanation or any request to reschedule. The hearing request is therefore considered withdrawn. 38 C.F.R. § 20.704(d) (2013). In a May 2011 rating decision, the RO granted an increased rating of 30 percent for the Veteran's cervical strain disability and an increased rating of 40 percent for her lumbar strain disability, each effective June 19, 2010. As this is not the highest possible rating for these disabilities, the Veteran's claims for increased evaluations remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). Additionally, as the increase did not become effective the date of the Veteran's claim (May 13, 2008), the issues have been recharacterized on the title page of this decision to more accurately reflect the current status. The issue of entitlement to a temporary 100 percent evaluation for convalescence has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See March 2010 Report of General Information; March 2010 Statement by the Veteran's Representative. Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. 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 The Veteran contends that she is entitled to disability evaluations in excess of 30 percent for her service-connected cervical strain and in excess of 40 percent for her service-connected lumbar strain. The evidence of record demonstrates that a new VA examination is necessary before appellate review may proceed. VA has a duty to assist veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). This duty to assist includes providing a thorough and contemporaneous medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Although a new VA examination is not warranted based merely upon the passage of time, see Palczewski v. Nicholson, 21 Vet. App. 174 (2007), the Court of Appeals for Veterans Claims (Court) has held that "[w]here a veteran claims that 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." Olsen v. Principi, 3 Vet. App. 480, 482 (1992) (citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)); see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a 2 year period between the last VA examination and the Veteran's contention that the disability has increased in severity). In a November 2013 Appellant's Brief submitted by the Veteran's representative, the Veteran asserts that "the VA examinations conducted in 2010, do not accurately portray the current severe disability picture, nor does it compare to the severity of more recent treatment records." Accordingly, as the Veteran's last VA examination was more than 3 years ago, and as she asserts that the current medical evidence of record does not properly reflect her present disability level, remand is necessary so that the Veteran may be scheduled for a new examination to determine the current severity of her cervical and lumbar strain disabilities. Prior to the examination, all outstanding treatment records pertinent to the increased rating issues on appeal should be obtained and associated with the claims file. The claims file reflects that the Veteran has received private treatment for her cervical and lumbar spine disabilities. The Veteran should be provided an opportunity to identify, and VA should make efforts to obtain, any additional outstanding relevant private treatment records. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records from July 2010 to the present. Any attempts to obtain these records and responses received thereafter should be associated with the claims file. 2. Contact the Veteran and request that she provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any treatment records from any private medical providers who have treated her for a spine condition, to include cervical and lumbar strain. After the Veteran has signed the appropriate releases, those records not already associated with the claims file should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. If the AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file and the Veteran and her representative should be notified of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 3. After completing the above development, ensure that the Veteran is scheduled for a VA spine examination to determine the current severity of her service-connected cervical and lumbar spine disabilities. The claims file, including a copy of this REMAND, must be provided to the examiner for review. After conducting any appropriate and required testing, the examiner must describe in detail the current signs, symptoms, and manifestations of the service-connected cervical and lumbar spine disabilities. Findings must include descriptions of any associated neurological problems as objectively found, such as radiculopathy. The examiner must explain the rationale for any opinion rendered. 4. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, she and her representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and her representative should be afforded the applicable time period in which to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). _________________________________________________ BETHANY L. BUCK 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).