Citation Nr: 1343323 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 08-36 789 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for service-connected degenerative disc disease of the cervical spine with spondylosis for the period of time prior to August 23, 2008. 2. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the cervical spine from August 23, 2008 to June 4, 2010, with the exception of the period from June 27, 2009 to November 30, 2009, when the Veteran was assigned a total rating based on the need for convalescence. 3. Entitlement to a disability rating in excess of 30 percent for degenerative disc disease of the cervical spine for the period of time after June 5, 2010. 4. Entitlement to an initial evaluation in excess of 10 percent for right cervical radiculopathy. REPRESENTATION Appellant represented by: John P. Dorrity WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran had active military service from October 1980 to November 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2007 and March 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in September 2010. A transcript of this hearing is associated with the claims folder. This matter was last before the Board in May 2011 at which time it was remanded for further development. Also, when this matter was last before the Board, the Board referred the issue of difficulty swallowing, as a result of surgery for his service-connected cervical spine condition. The Agency of Original Jurisdiction (AOJ) has not acted on this referral. In addition, the Veteran raised the issue of an increased rating for his service-connected impaired sensation of the left forearm and hand. See statement of the Veteran received in April 2013. Because these matters have not been developed or certified for appellate review, the Board does not have jurisdiction over them and they are REFERRED to the AOJ for appropriate action. On remand, the RO granted separate 10 percent evaluations for a scar of the anterior right side of the neck status-post surgery and for right cervical radiculopathy by way of a March 2013 rating decision. The Veteran was informed of the decision and of his appellate rights. To date, there is no indication that the Veteran has appealed the aspect of that rating decision dealing with the scar of the anterior right side of the neck status-post surgery. Accordingly, the issues before the Board at this time are those listed on the title page. 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 When this matter was last before the Board, it was remanded to afford the Veteran a VA examination, which was conducted in January 2012. The report associated with this examination notes that the Veteran remained working full-time and that he was able to perform his job duties despite pain. In an April 2013 statement, the Veteran related that his condition was worse than disclosed in the January 2012 examination. He particularly related that he was unable to fully perform the duties of his job and could not turn his head. When it is indicated that the severity of a service-connected disability has increased since the most recent rating examination, an additional examination is appropriate. See Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Nonetheless, the Board is not required to remand an appealed disability benefit claim solely because of the passage of time since an otherwise adequate examination report was prepared. VAOPGCPREC 11-95 (April 7, 1995). As the Veteran's complaints indicate possible worsening of the service-connected disability, he should be afforded a new VA examination to address the severity of this condition. Also, when this matter was last before the Board in May 2011, it was remanded to obtain up-to-date VA medical records. In furtherance of the Board's remand directives, the AOJ obtained VA records dated through October 17, 2011. In furtherance of attempting to substantiate the claims, it is noted that the Veteran submitted several VA medical records dated in July and August 2013, albeit absent a waiver of initial AOJ consideration. The submission of these records indicates that there may be outstanding relevant VA records. Lastly, in the aforementioned March 2013 rating decision, the RO granted entitlement to service connection for right cervical radiculopathy with a 10 percent evaluation. The Veteran has expressed disagreement with the assignment of this disability evaluation. See April 2013 statement from Veteran. The Court has held that the filing of a Notice of Disagreement (NOD) initiates the appeal process, and that the failure of the RO to issue an Statement of the Case (SOC) is a procedural defect requiring a remand. See Manlicon v. West, 12 Vet. App. 238 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995). Accordingly, the Board is required to remand this issue for issuance of a SOC. Id. Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain any VA medical records not currently associated with the claims file and associate them therewith, particularly any records from the dated after approximately October 17, 2011. 2. After the development directed in paragraph 1 has been completed to the extent possible, schedule the Veteran for an appropriate VA examination, to include a complete physical examination, in order to determine the current severity of his service-connected degenerative disc disease of the cervical spine with spondylosis. 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. The examination report should provide information concerning the degree of disability present in the Veteran's cervical spine and his current range of motion in this spinal segment. The clinician should also discuss any industrial impairment resulting from the Veteran's service-connected disability. In the January 2012 examination report, it was indicated that the Veteran worked full-time as an auto mechanic, however, his job was predominantly one involving the training of individuals. The Veteran provided further information concerning difficulties performing as a mechanic in an April 2013 statement including difficulty turning his head. The extent of any pain, weakened movement and excess fatigability on use should be described. To the extent possible, the functional impairment due to weakened movement, pain or excess fatigability on use or during flare-ups, if any, should be assessed in terms of additional degrees of limitation of motion. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. After completion of the above to the extent possible and any additional development of the evidence that the AOJ may deem necessary, the AOJ should review the expanded record and readjudicate the claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto before this case is returned to the Board. 4. Issue a SOC to the Veteran regarding his claim of entitlement to an initial evaluation in excess of 10 percent for right cervical radiculopathy. The Veteran is advised that a timely substantive appeal will be necessary to perfect an appeal to the Board concerning this claim. 38 C.F.R. § 20.302(b) (2013). 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). _________________________________________________ S. S. TOTH 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).