Citation Nr: 1343022	
Decision Date: 12/27/13    Archive Date: 01/07/14

DOCKET NO.  12-04 791	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Des Moines, Iowa


THE ISSUE

Entitlement to an initial, compensable evaluation for a low back disability.


WITNESSES AT HEARING ON APPEAL

Appellant, J.M.


ATTORNEY FOR THE BOARD

M. Scott Walker, Counsel







INTRODUCTION

The Veteran served on active duty from June 2007 to April 2008.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa.  The Veteran was afforded a Board hearing, held by the undersigned, in May 2012.  A copy of the hearing transcript (Transcript) has been associated with the record.

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

Although the Board regrets any further delay in adjudicating the Veteran's claim, pursuant to the duty to assist, the issue on appeal must be remanded for further development.

Here, the Board finds that the evidence of record is insufficient to properly rate the disability on appeal.  The Veteran's most recent VA examination to assess the severity of his service-connected back disability was provided in February 2009.  During his Board hearing in May 2012, the Veteran testified that his back symptoms had worsened since that examination, and that he would be willing to report for an additional VA psychiatric interview.  See Transcript, p. 10.

VA's "duty to assist" requires a "thorough and contemporaneous medical examination" that is sufficient to ascertain the current level of disability.  Floyd v. Brown, 9 Vet. App. 88, 93 (1995).  As noted, the Veteran was last afforded a VA examination to assess the severity of his service-connected back disability in 2009.  As such, and because the Veteran has testified that the symptomatology associated with his disability is worse than reflected in the prior examination, the claim on appeal must be remanded for current, pertinent VA examination to provide findings that are consistent with applicable rating criteria, to include all necessary testing, so as to accurately rate such disability.  The medical examination must consider the records of prior medical treatment in order to assure a fully informed decision.  Caffrey v. Brown, 6 Vet. App. 377, 381 (1994).   

Accordingly, the case is REMANDED for the following actions:

1.  The RO/AMC shall schedule an additional VA orthopedic examination so as to assess the severity of the Veteran's service-connected back disability.  (Advise the Veteran that failure to appear for an examination as requested, and without good cause, could adversely affect his appeal.  See 38 C.F.R. § 3.655 (2013).)  

Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail.  The complete claims folder must be provided to the examiner for review in conjunction with the examination and the examination report should reflect that such a review was conducted.  

3.  After undertaking any other development deemed appropriate, readjudicate the claim on appeal.  If the issue remains denied, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review.

The appellant has the right to submit additional evidence and argument on the matter or 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. 2013).



_________________________________________________
F. JUDGE FLOWERS
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).