Citation Nr: 1410104 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-38 226 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial rating in excess of 20 percent for service-connected back disability. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. R. Layne, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1999 to June 2003, July 2005 to November 2005, and June 2006 to June 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The case was subsequently transferred to the RO in Waco, Texas. A Travel Board hearing was held at the Waco RO in August 2011 before the Board and a copy of the hearing transcript has been added to the record. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. REMAND The Veteran is seeking an initial rating in excess of 20 percent for his service-connected back disability. The Veteran's most recent VA examination was conducted in December 2010. At his hearing, he testified that his disability had gotten worse since the previous examination. Specifically, the Veteran testified that: his back pain had worsened; he has been prescribed additional medication; his back pain has prevented him from having physical therapy; he experiences back spasms; and has pain radiating to his legs. Additionally, the Veteran testified that he has weekly consultations for his back disability. Generally, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal the current state of the veteran's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination). Accordingly, the Board determines that the appeal must be remanded so that another VA examination may be scheduled to assess the current nature and severity of the Veteran's service-connected back disability. The Board also notes that the most recent treatment records associated with the claims files are from August 2011. In August 2011, the Veteran testified that he receives weekly treatment for his back disability. As such, updated treatment records should be obtained in light of the remand. Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's more recent treatment records, since August 2011, and associate them with the claims folder. 2. After completion of the above, the Veteran should be afforded an appropriate VA examination to determine the current nature, extent and severity of his 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).) The entire claims file (i.e. both the paper claims file and electronic claims file) should be made available to and be reviewed by the examiner in conjunction with the examination. If the examiner does not have access the electronic claims file, any treatment records contained in electronic claims file must be printed and associated with the paper claims folder for review. All indicated tests should be performed. The examiner should report all pertinent findings. The examiner should report the Veteran's range of motion findings, whether or not the Veteran experiences radiculopathy to the lower extremities or any other neurological impairment associated with the back disability, and comment on whether the Veteran experiences any incapacitating episodes because of his back disability. In describing any limitation of function, the point at which pain begins during tests of motion should be identified. Whether there is any pain, weakened movement, excess fatigability or incoordination on movement, should be noted. The examiner is asked to describe whether pain limits functional ability during flare-ups or when the back is used repeatedly. All functional losses caused by service-connected back disability due to pain, weakness, fatigability, etc., should be specifically equated to additional degrees of motion lost beyond that shown clinically. All findings and conclusions should be set forth in a legible report with supporting rationale for any opinions. 3. After the requested examination has been completed, the report should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the examiner for corrective action. 4. Finally, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case. A reasonable period of time should be allowed for response before the appeal is returned to the Board. The appellant 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 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). _________________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).