Citation Nr: 1342425 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 11-13 684 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased rating in excess of 20 percent for a service-connected degenerative joint disease of the thoracic spine. ATTORNEY FOR THE BOARD J. Owusu-Asiedu, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1990 to March 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Regional Office (RO) in Nashville, Tennessee, that increased the evaluation of the Veteran's service-connected degenerative joint disease of the thoracic spine from 10 percent to 20 percent rating, effective September 29, 2009. In an April 1994 rating decision, the RO granted service connection for the thoracic spine disability and assigned a 10 percent rating effective on April 1, 1994. The Veteran requested a hearing before the Board in a June 2013 letter. However, in an October 29, 2013 letter to the Board, he withdrew his request for a Board hearing and executed a pro se election form. Thus, the Veteran's request for a hearing is deemed withdrawn. 38 C.F.R. § 20.704 (e) (2013). The Veteran is now pro se before the Board. A review of the Virtual VA paperless claims processing system revealed a June 2012 VA compensation and pension examination which is discussed in the present appeal. 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 prior to further disposition of the claim. In a February 2004 statement, the Veteran requested that VA obtain medical records from Murfreesboro, Tennessee, VA Medical Center and VA Outpatient Clinic in Chattanooga, Tennessee. These records are not associated with the claims file. In addition, there is no record of a request from the RO to secure these documents, or a statement addressing the unavailability of these records. The RO failed to enter a formal determination by the AMC as to the unavailability of requested information or records, nor was any attempt made by the AMC to advise the Veteran as to the unavailability of the records from these VA facilities. Further efforts are needed to obtain the records in question and associate them with the claims file. In the event that those efforts are unsuccessful or it is determined that additional efforts to obtain same would be futile, then entry of a formal finding as to their unavailability, with notice to the Veteran, is required under governing legal authority. 38 U.S.C.A. § 5103A(b)(3) (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(e) (2013). On separate grounds, in June 2012, the Veteran was afforded a VA compensation and pension examination for his increased rating claim. The Board notes that the June 2012 VA examination is inadequate, for the reasons that follow: First, the examiner noted that the Veteran had no intervertebral disc syndrome. The Board notes that this information in inconsistent with the record, since on the same examination the examiner diagnosed the Veteran with degenerative disc disease. The examiner needs to further explain why the Veteran, although diagnosed with degenerative disc disease during the exam, does not have invertebral disc syndrome. Second, in the June 2012 VA examination, the examiner opined that the Veteran had no additional limitation in his range of motion of the thoracolumbar spine after repetitive use. Conversely, the examiner also stated that the Veteran did display functional loss and functional impairment of the thoracic spine. He further opined that the Veteran exhibited less movement than normal, had pain on movement, and experienced interference with sitting, standing, or weight-bearing. The examiner also noted that the Veteran displayed localized tenderness or pain to palpation for his joints and soft tissue of the thoracolumbar spine. The Board notes that the assessment that the Veteran has no additional limitation in range of motion is inconsistent with the examiner's finding that the Veteran displayed functional loss, pain and less movement than normal, and needs to be clarified. Third, in a November 2009 VA examination, the examiner noted that that the Veteran used a cane or brace. Subsequently, the June 2012 VA examiner noted that the Veteran was not using any assistive device as part of his normal mode of locomotion. However, he failed to discuss any improvement in Veteran's mobility by no longer needing an assistive device, and in turn, any impact on the Veteran's service-connected thoracic spine disability. Accordingly, this case is REMANDED for the following actions: 1. Undertake further efforts to obtain the Veteran's medical records from Murfreesboro, Tennessee, VA Medical Center and VA Outpatient Clinic in Chattanooga, Tennessee. Those efforts should be undertaken until the information and/or records requested have been obtained and associated with the Veteran's VA claims folder or until it is found in a formal determination that the records/data sought do not exist or that further efforts to obtain same would be futile. Notice of that formal determination as to unavailability of records or verifying data should then be furnished to the Veteran in writing. 2. After completion of the development described in item (1) above, forward the Veteran's claims file (including relevant Virtual VA records) and a copy of this REMAND to the same VA examiner who administered the Veteran's June 2012 VA examination for an addendum report. The examiner should review his prior findings, to include his determinations that the Veteran had no intervertebral disc syndrome, that the Veteran had no additional limitation in range of motion, and his failure to explain that the Veteran had no assistive device as part of his normal mode of locomotion. Upon review of the evidence of record, to include the examiner's prior findings, all evidence added to the Veteran's claims file since his last review, the examiner should supply a new medical opinion specifically addressing: a) The examiner's opinion that the Veteran had no intervertebral disc syndrome, in spite of diagnosing him with degenerative disc disease. b) The examiner's opinion that the Veteran had no additional limitation in his range of motion of the thoracolumbar spine after repetitive use, in spite of his statements that the Veteran did display pain, functional loss and functional impairment of the thoracic spine. c) The relevance of any change in Veteran's mobility by use or non-use of assistive devices, and any impact on the Veteran's service-connected thoracic spine. This clarifying opinion should include supporting explanation as to why or how he reached his medical conclusion, with reference to the evidence of record. If the June 2012 VA examiner is unavailable to provide an addendum report, the Veteran's claims file, to include a copy of this REMAND and all relevant Virtual VA records, should be forwarded to another qualified medical professional to provide an opinion as to the current condition of the Veteran's service-connected degenerative joint disease of the thoracic spine. After review of the claims file, to include the June 2012 examination report, the examiner should answer the same questions outlined in the paragraphs above with supporting explanation. If any examiner determines that additional physical examination and/or diagnostic testing of the Veteran are necessary, or that a specialist should be consulted, such should be scheduled. The Board reiterates that a clear rationale for all opinions must be provided, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Further, if any examiner cannot provide the requested opinion without resorting to speculation, the examiner should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 3. Then, after ensuring any other necessary development has been completed; readjudicate the Veteran's claim considering any additional evidence added to the record. If any action remains adverse to the Veteran, provide the Veteran and his representative with a Supplemental Statement of the Case and allow the Veteran an appropriate opportunity to respond thereto. Thereafter, return the case to the Board. No action by the Veteran is required until he receives further notice. The Veteran 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. 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). _________________________________________________ CHERYL L. MASON 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).