Citation Nr: 1522063 Decision Date: 05/22/15 Archive Date: 06/01/15 DOCKET NO. 13-25 809 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased disability rating in excess of 20 percent for lumbar spondylosis. 2. Entitlement to an increased disability rating in excess of 10 percent for residual fracture right os calcis with hallux valgus and arthritis of the distal toes and plantar calcaneal spur. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Chad Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1978 to June 1978. This appeal comes before the Board of Veterans' Appeals (Board) from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran's July 2013 VA Form 9 substantive appeal requested a Decision Review Office (DRO) hearing in conjunction with his appeal. A DRO hearing was scheduled for September 2013; however, the Veteran requested that it be rescheduled due to a lack of transportation. A subsequent DRO hearing was scheduled for November 2013 and the Veteran again requested that it be rescheduled due to a lack of transportation. The DRO hearing was again rescheduled for December 2013; however, the Veteran failed to appear. Notably, the Veteran did not submit a request for postponement or a statement of good cause following his failure to appear for the December 2013 DRO hearing. Given the above, the Board considers the Veteran's request for a personal hearing before a DRO to be withdrawn. Cf. 38 C.F.R. § 20.704(d) (concerning the withdrawal of a veteran's hearing request after a failure to appear for a scheduled hearing before the Board). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Regrettably, a remand is necessary for additional development regarding the Veteran's claims on appeal. Specifically, regarding the Veteran's claim of entitlement to an increased rating for lumbar spondylosis, the Veteran must be afforded a new VA examination to assess the current severity of his back disability and the RO must obtain any outstanding relevant treatment or vocational rehabilitation records. Finally, regarding the Veteran's claim of entitlement to an increased disability rating for a right foot disability, the RO must issue a statement of the case (SOC) in response to the Veteran's timely notice of disagreement (NOD). I. Lumbar Spondylosis VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2014). Where the evidence of record does not reflect the current state of the disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). VA is required to conduct an accurate and descriptive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2 (2014); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA's duty to assist includes "the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one"). In addition, reexamination will be requested whenever there is a need to verify either the continued existence or the current severity of a disability. 38 C.F.R. § 3.327(a) (2014). Review of the record reveals that the Veteran was last afforded a VA examination regarding his lumbar spine disability in November 2012. Moreover, private treatment records from 2013 indicate that the Veteran's condition has continued to worsen, including his complaints of increased pain in his back which radiates to his lower extremities. Given this, the Board concludes a new VA examination is necessary to determine the current severity of the Veteran's service-connected lumbar spondylosis. See Snuffer v. Gober, 10 Vet. App. 400 (1997); see also Caffrey v. Brown, 6 Vet. App. 377 (1994). To the extent that the Veteran's representative asserts in his January 2015 VA Form 646 that the November 2012 VA examiner failed to consider that the Veteran could only function with pain medication and rest, the Board notes that the United States Court of Appeals for Veterans Claims (the Court) has held that, in assigning disability ratings, the Board may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56 (2012). Therefore, upon remand and further examination, the VA examiner must not consider any ameliorative effects of the Veteran's chronic use of narcotic pain medication. Additionally, the record indicates that the Veteran was found to be eligible for state vocational rehabilitation services in January 2012. Moreover, the Veteran underwent a related orthopedic examination in September 2012 wherein a physician found that he could benefit from occupational retraining. As state vocational rehabilitation records could be pertinent to the issue on appeal, the Board finds that any relevant outstanding vocational rehabilitation records should be obtained upon remand. II. Right Foot Disability An August 2014 RO decision denied the Veteran's claim of entitlement to an increased disability rating in excess of 10 percent for residual fracture right os calcis with hallux valgus and arthritis of the distal toes and plantar calcaneal spur. In September 2014, the Veteran submitted a timely notice of disagreement (NOD) with the August 2014 RO decision. See 38 C.F.R. § 20.201. An SOC is required when a claimant protests a determination. 38 C.F.R. §§ 19.26, 19.29. To date, no SOC has been furnished in response to the Veteran's timely NOD regarding the denial of his claim of entitlement to an increased disability rating in excess of 10 percent for residual fracture right os calcis with hallux valgus and arthritis of the distal toes and plantar calcaneal spur, or at least no SOC has been associated with the claims file (physical or paperless) that is now before the Board. Therefore, remand is required for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The SOC must be issued unless the Veteran's claim is resolved, such as by a complete grant of the benefit sought, or withdrawal of the NOD. The remanding of this issue must not be read as an acceptance of jurisdiction over the same by the Board. The Board may only exercise jurisdiction over an issue after an appellant has filed both a timely NOD to a decision denying the benefit sought and a timely substantive appeal after issuance of an SOC. 38 U.S.C.A. § 7105; Roy v. Brown, 5 Vet. App. 554 (1993). The AOJ should return the issue of entitlement to an increased disability rating in excess of 10 percent for residual fracture right os calcis with hallux valgus and arthritis of the distal toes and plantar calcaneal spur to the Board only if the Veteran perfects his appeal in accordance with the provisions of 38 U.S.C.A. § 7105. Accordingly, the case is REMANDED for the following action: 1. After obtaining any required authorization, obtain any outstanding records of vocational rehabilitation services or treatment from the state of Oklahoma and associate such records with the claims file. Properly document all efforts to obtain such records, including any negative responses received, notifying the Veteran as required. 2. Schedule the Veteran for a VA medical examination to determine the current severity, manifestations, and effects of the Veteran's lumbar spine disability. Provide the examiner with the Veteran's entire claims file for review. The lumbar spine findings reported should include ranges of motion, any associated neurological effects (with specific consideration of the Veteran's reports of pain which radiates to his lower extremities), and the duration of any incapacitating episodes over the year preceding the examination, without respect to the ameliorative effects of pain medication. 3. Then, readjudicate the Veteran's claim of entitlement to an increased disability rating for his lumbar spine disability. If the benefit sought on appeal remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and provide a reasonable opportunity to respond. The appeal should then be returned to the Board for further adjudication, if otherwise in order. 4. Issue an SOC addressing the issue of entitlement to an increased disability rating in excess of 10 percent for residual fracture right os calcis with hallux valgus and arthritis of the distal toes and plantar calcaneal spur. The Veteran must be advised of the time limit in which he may file a substantive appeal. 38 C.F.R. § 20.302(b). If, and only if, the Veteran timely perfects an appeal as to that issue, return the matter to the Board for further appellate consideration. 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. 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 2014). _________________________________________________ R. FEINBERG Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).