Citation Nr: 1531189 Decision Date: 07/22/15 Archive Date: 08/05/15 DOCKET NO. 11-00 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 20 percent for degenerative changes of C4-5 with some anterior spurring; moderate to marked central spinal canal stenosis at C4-5 and C5-6; C6-7 posterior concentric bulging disc and small central extrusion; and T1-2 small central disc extrusion. 2. Entitlement to a rating in excess of 20 percent for degenerative changes of L5 with narrowing of the disc space at L4-S1 prior to September 16, 2010. 3. Entitlement to a rating in excess of 40 percent for degenerative changes of L5 with narrowing of the disc space at L4-S1 on or after September 16, 2010. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from September July 1976 to October 1995. He had prior service in the Puerto Rico Army National Guard, to include a period of active duty for training (ACDUTRA) from January 1967 to May 1967. This matter came to the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. Before the appeal was certified to the Board, in a November 2010 rating decision, the RO increased the rating for the appellant's service-connected lumbar spine disability to 40 percent, effective September 16, 2010. Although a higher rating was granted, the issue remains in appellate status, as the maximum schedular rating was not assigned nor did the appellant withdraw his appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND First, the Board observes that, since the RO last reviewed this matter in the November 2010 Statement of the Case, additional relevant evidence has been associated with the record, including a May 2011 VA medical examination report which includes findings regarding the severity of the appellant's service-connected spine disabilities, VA and private clinical records documenting treatment for the service-connected spine disabilities, and records from the Social Security Administration reflecting that the appellant has been awarded disability benefits as a result of a spine disability. Absent a waiver, this evidence must be considered by the RO in the first instance. 38 C.F.R. § 20.1304 (2014). Second, although the record reflects that the appellant has received VA medical treatment for many years at VA medical facilities in Puerto Rico and, more recently, in Florida, it does not appear that complete VA clinical records from these facilities have been associated with the record. This must be accomplished on remand. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c)(2) (2014). Third, the record reflects that appellant was last examined in connection with his claims for increased ratings for his service-connected spine conditions in September 2010, which was nearly five years ago. Indeed, in June 2015 written arguments, the Veteran's representative requested a remand of this matter for the purpose of obtaining a contemporaneous medical examination which more accurately reflects the current severity of the appellant's service-connected spinal disabilities. In light of these assertions and because a remand is required for the additional reasons set forth above, the Board finds that a contemporaneous VA medical examination should be obtained. See 38 C.F.R. § 3.159(c) (2014); see also Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his service connected cervical and lumbar spine disabilities. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding, relevant VA medical records, to include from the San Juan VA Medical Center, the Mayaguez VA clinic, and the Broward County and Hollywood, Florida, VA outpatient clinics for the period from April 2007 to the present. 2. After completing the foregoing development, the appellant should be afforded a VA medical examination to ascertain the current severity and manifestations of his service-connected cervical and lumbar spine disabilities. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected disability. The examiner should report all signs and symptoms necessary for rating the Veteran's cervical and lumbar spine disabilities under the rating criteria. In particular, the examiner should provide the range of motion of the thoracolumbar spine and cervical spine in degrees and state whether there is any form of ankylosis. The examiner should also state the total duration of incapacitating episodes over the past 12 months attributable to each disability and identify all neurological manifestations of the disabilities. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After conducting any additional development deemed necessary, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the appellant and his representative should be furnished a SSOC and be afforded a reasonable 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 2014). _________________________________________________ J.W. ZISSIMOS 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).