Citation Nr: 1600956 Decision Date: 01/11/16 Archive Date: 01/21/16 DOCKET NO. 13-36 202 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial rating higher than 10 percent disabling for a thoracolumbar spine strain (low back disability). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Theophilus Griffin, Counsel INTRODUCTION The Veteran had active service from June 2008 to June 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2012 decision of the Benefits Delivery at Discharge (BDD) Unit in the Salt Lake City, Utah, Regional Office (RO). The Veteran has continually resided in the State of California and the Los Angeles RO has jurisdiction over the claims. The issue of entitlement to service connection for an acquired psychiatric disorder, including a bipolar disorder, an obsessive compulsive disorder (OCD), posttraumatic stress disorder (PTSD), and schizophrenia, has been raised by the record in a December 23, 2013, statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In a December 2013 statement and in his July 2013 notice of disagreement, the Veteran provided a competent and credible account that his low back disability had worsened since the most recent March 2012 VA examination. As such VA is required to afford him a contemporaneous VA examination to assess the current nature, extent and severity of his low back disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Thus, the Board has no discretion and must remand the claim. The record also suggests the Veteran receives regular treatment for low back condition; however, VA treatment records dated since October 2012 have not been associated with the claims folder. Under the law, VA must obtain these records. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2015). For this reason as well, the Board must remand the appeal. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment and hospitalization records related to the Veteran's low back disability, dated since October 2012. Any negative response(s) must be in writing and associated with the claims folder. 2. After the aforementioned development has been completed, schedule the Veteran for an appropriate VA spine examination to assess the nature, extent, and severity of the disability. The entire claims file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the VBMS/Virtual VA file that are not available on CAPRI or AMIE must be printed so they can be available to the examiner for review. The examiner should identify all back orthopedic pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran's back. In addition, if possible, the examiner should state whether the low back disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes. Further, the examiner should also discuss the nature and severity of any right or left-sided radiculopathy or neuropathy found to be present. The examiner must also state whether the Veteran has erectile, bowel or bladder problems related to his back disability. The provided examination report must reflect consideration of both the medical and lay evidence of record and set forth a complete rationale for all findings and conclusions. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence (entitlement to a higher rating for the low back disability), including considering if referral for extraschedular consideration is warranted. If the claim remains denied, the Veteran and his representative should be issued a Supplemental Statement of the Case, and the appeal returned for appellate review. An appropriate period of time should be allowed for response. The Veteran 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 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). _________________________________________________ MICHAEL MARTIN 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) (2015).