Citation Nr: 1602831 Decision Date: 01/29/16 Archive Date: 02/05/16 DOCKET NO. 14-09 589 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a compensable rating for low back pain with radiculopathy. 2. Entitlement to a compensable rating for ganglion cysts, bilateral wrists. REPRESENTATION The Veteran represented by: James G. Fausone, Attorney ATTORNEY FOR THE BOARD Russell Veldenz, Counsel INTRODUCTION The Veteran served on active duty from March 1985 to February 1995. This matter is before the Board of Veterans' Appeals (Board) on appeal of a May 2011 rating decision by the Houston, Texas Department of Veterans Affairs (VA) Regional Office (RO). The issue of an increased rating for the low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT Ganglion cysts, bilateral wrists is not manifested by pain, scar, growth, or deformity; limitation of function; or shown or more nearly approximated limitation of motion of dorsiflexion less than 15 degrees, or limitation of motion of palmar flexion limited in line with the forearm. CONCLUSION OF LAW The criteria for a compensable rating for ganglion cysts, bilateral wrists have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.71a, 4.118, 4.120, 4.124a, Diagnostic Codes 5215, 5307-09, 7819, and 8003 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claims. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006). In a claim for an increased rating for a disability, the VCAA notice requirements are the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (interpreting 38 U.S.C.A. § 5103(a) as requiring generic claim-specific notice and rejecting Veteran-specific notice as to effect on daily life and as to the assigned or a cross-referenced Diagnostic Code under which the disability is rated). The VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided pre- adjudication VCAA notice by letter, dated in March 2011. As for content of the VCAA notice, the documents complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (38 C.F.R. § 3.159 notice); of Dingess v. Nicholson, 19 Vet. App. 473, 484-86 (2006) (notice of the elements of the claim); and of Vazquez-Flores v. Peake, 580 F.3d 1270 (Fed. Cir. 2009) (evidence demonstrating a worsening or increase in severity of a disability and the effect that worsening has on employment). Further VCAA notice is not required. Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim. The RO has obtained service treatment records, VA records, records from private medical caregivers, and afforded the Veteran a VA examination in September 2012. The report of the VA examination included a review of the Veteran's medical history, including his service treatment records, an interview and an examination of the Veteran, as well as sufficient findings to rate disability. Therefore, the Board concludes that the VA examination is adequate. 38 C.F.R. § 4.2; see Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Board acknowledges the argument of the Veteran's attorney that the ganglion disability should be remanded for a new VA examination during an active phase, citing Ardison v. Brown, 6 Vet. App. 405, 408 (1994). In Voerth v. West, 13 Vet. App. 117, 122-23 (1999), the Court held a new VA examination during an active phase is not required when a veteran's disability has no effect on employment and the disability does not last more than a few days. As discussed below, the September 2012 VA examination did not demonstrate the ganglion disability in an active phase. The VA examiner also found the disability had no effect on employment and was in remission. There is no evidence of an active phase at any time since the Veteran filed his claim. There also is no evidence, medical or lay, regarding the frequency, duration, or pattern of recurrence other than the Veteran reporting it last occurred before the Veteran filed his claim. The Board finds the absence of recurrence does not require a remand for a new VAX as there is no evidence of prolong periods of flare-ups. A remand for a VA examination would be impractical as it is uncertain when, if ever, a flare-up or active phase would occur. This leaves the Veteran's claim open ended instead of providing finality. It also is not demonstrated the disability has had an effect on employment. Therefore, the Board concludes a remand directing a new VA examination is not warranted. The Veteran can always file a new claim for any future increase in disability. The Veteran's attorney also argues that a new VA examination is warranted as the September 2012 VA examination is too remote as it has been more than three years since the VA examination occurred, citing Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). There was evidence, however, in Caffrey that the Veteran's disability had worsened during the subsequent period, which was an important factor in the Board's conclusion that a new VA examination was warranted. 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). Generally, a reexamination is required if the evidence indicates that there has been a material change in a disability. On the last VA, the examiner reported no ganglion disability was present. There is no evidence of a ganglion cyst since the examination. As there is no objective or even lay evidence indicating that there has been a recurrence of the disability or a material change in the severity of the Veteran's service-connected disability since he was last examined, a reexamination is not warranted, and the Board is deciding the appeal on the current record. As discussed below, the claim for an increased rating for low back pain is being remanded because relevant private treatment records have not been associated with the claims file. The Board finds that no prejudice to the Veteran has occurred proceeding to an adjudication of the issue of an increased rating for ganglion cysts for both wrists without also remanding the claim decided in this decision. The Veteran has requested that the medical records be obtained from a physician he identified as treating him solely for the low back disability and not for the ganglion cysts disability. There is no other evidence in the file indicating this physician or any other medical provider has treated the ganglion cysts disability during the appeal period and therefore there is no basis to conclude obtaining the records would help the Veteran substantiate his claim for a compensable rating for ganglion cysts. Further, the Board has determined that there is no prejudice to the Veteran that the records are not available for review, because there is no basis for a compensable rating both before and after the VA examination, and therefore no remand is necessary to obtain the records. Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). See also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. General Principles Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Facts The Veteran received a VA examination in September 2012. The Veteran is right handed. The Veteran reported he had ganglion cysts in his wrists bilaterally while in service, which when swollen would cause incoordination in the hands. The ganglions have not been apparent for the past two years although the Veteran fears they may return. He did not report flare-ups that impact the function of the wrist. Both wrists demonstrated palmar flexion motion to 60 degrees and dorsiflexion to 70 degrees. No objective evidence of painful motion was noted during testing. The Board notes the VA examiner directly stated there was no pain upon dorsiflexion but stated pain at 70 degrees or greater for palmar flexion for the right wrist. This appears to be a scrivener's error by the examiner as he indicated elsewhere that there was no pain upon any motion for either wrist. The ranges of motion remained the same after repetitive testing. The only functional limitation was less movement than normal. There was no tenderness. Muscle strength was normal for both wrists in flexion and extension. Tinels, Phalen and Finkelstein tests were negative bilaterally. X-rays did not document degenerative or traumatic arthritis in either wrist and were normal. The examiner stated the disability did not impact the Veteran's ability to work. The diagnosis was ganglions, bilateral wrists (presently in remission). The examiner also stated that at this time the ganglion cysts are not apparent, which is consistent with the natural history, that is, that they may resolve on their own, but may also recur in the future. In the record before the Board, there are no other records of diagnosis, treatment or evaluation of the ganglion cyst disability by either VA or private medical providers during the rating period under review. Analysis There is no Diagnostic Code addressing ganglion cysts. The Veteran's ganglion cysts, bilateral wrists disability is currently evaluated as noncompensable under Diagnostic Code 7819, benign skin neoplasms. A ganglion is the anatomic nomenclature for a group of nerve cell bodies located outside the central nervous system." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, p. 768 (1994). It also refers to a benign cystic tumor occurring on an aponeurosis or a tendon in the wrist or dorsum of the foot; it consists of a thin fibrous capsule enclosing a clear mucinous fluid. Id. The aponeurosis is a white, flattened or ribbonlike tendinous expansion, usually serving to connect a muscle with the parts that it moves. Id. at 118. When there is no diagnostic code directly on point for a given disorder, the disorder is evaluated under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. See 38 C.F.R. § 4.20; Vogan v. Shinseki, 24 Vet. App. 159, 161 (2010). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and the demonstrated symptomatology. See id. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings, nor will ratings assigned to organic disease and injuries be assigned by analogy to conditions of functional origin. See 38 C.F.R. § 4.20. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Although the RO never expressly stated it was rating the Veteran's ganglion cyst disability under Diagnostic Code 7819 by analogy, it appears the RO did so because, as noted, there is no Diagnostic Code addressing ganglion cyst disabilities. Pursuant to Diagnostic Code 7819, a benign skin neoplasm is rated as disfigurement of the head, face, or neck under Diagnostic Code 7800, as a scar under Diagnostic Codes 7801-7805, or impairment of function. 38 C.F.R. § 4.118, Diagnostic Code 7819. Initially, the Board notes the Veteran's ganglion cysts disability concerns his wrists. Accordingly, Diagnostic Code 7800, disfigurement of the head, face, or neck is not applicable. 38 C.F.R. § 4.118, Diagnostic Code 7800. As to Diagnostic Codes 7801-7804, the schedular criteria are dependent upon the size of the scars or disfigurement or if they are unstable or painful. As noted above, there currently is no visible cyst of any size or signs or symptoms of instability or pain. Accordingly, Diagnostic Codes 7801-7804 do not result in a compensable rating. As to Diagnostic Code 7805, like Diagnostic Code 7819, impairment of function is evaluated. An impairment of function wrist disability is evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5214, 5215. Under Diagnostic Code 5215, for limitation of motion of the wrist, either major or minor, the maximum 10 percent rating is assigned when there is limitation of motion of the wrist with dorsiflexion (extension) less than 15 degrees or with palmar flexion limited in line with the forearm. There is no higher disability evaluation available under Diagnostic code 5215. For a rating in excess of 10 percent, ankylosis of the wrist must be present. 38 C.F.R. § 4.71a, Diagnostic Code 5214. Normal wrist range of motion is from 80 degrees flexion to 70 degrees extension, with normal ulnar deviation to 45 degrees and normal radial deviation to 20 degrees. 38 C.F.R. § 4.71, Plate I. Therefore, neither Diagnostic Code 7805 nor Diagnostic Code 7819 results in a compensable rating for the Veteran's ganglion cyst disability as dorsiflexion was normal in both wrists. While palmar flexion was limited to 10 degrees less than normal, palmar flexion was not limited in line with the forearm. Further, the VA examiner concluded that the Veteran's ganglion cyst disability did not cause any limitation of motion or functional limitations and did not affect his ability to work. Accordingly, neither Diagnostic Code 7805 nor Diagnostic Code 7819 warrants a compensable rating for the Veteran's ganglion cysts disability. As the Veteran's disability is already rated by analogy, it is permissible to rate the disability under a closely related condition in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. The Board has also considered Diagnostic Code 5003 for rating degenerative arthritis. Under this diagnostic code, degenerative arthritis (established by X-ray findings) is rated based on limitation of motion of the specific joint involved. If the limitation of motion is noncompensable, a rating of 10 percent is assigned for each major joint or group of minor joints. In the Veteran's case, the X-rays were normal and there is no degenerative arthritis that has been documented and therefore a compensable evaluation is not warranted under Diagnostic Code 5003. As the ganglion cyst disability may refer to a cyst that forms in the aponeurosis or a tendon in the wrist or dorsum of the foot; the Board has also considered whether the Veteran may be entitled to a compensable rating under Muscle Groups VII, VIII, and IX (Diagnostic Codes 5307-5309). These diagnostic codes require evidence of impairment of function but, as noted, there is no evidence demonstrating impairment of function and therefore, a compensable rating under Diagnostic Codes 5307-5309 is not warranted. Finally, although it appears the Veteran's ganglion cysts disability refers to a growth involving his tendons, as noted above, ganglion may also refer to a benign neurological neoplasm. The Board has therefore considered whether the Veteran could receive a compensable rating for a benign neurological neoplasm. Diagnostic Code 8003, a minimum 60 percent rating is assigned for benign new growth of the brain. Otherwise, residuals are rated according to the appropriate rating criteria, with a minimum rating of 10 percent. 38 C.F.R. § 4.124a, Diagnostic Code 8003. In order to obtain a compensable rating for the cyst itself, there must be evidence that it is actually a growth, either malignant or benign. See 38 C.F.R. § 4.124a, Diagnostic Codes 8002, 8003. The evidence of record does not demonstrate that a compensable rating is warranted for the ganglion cysts disability as a benign neurological neoplasm. The term "growth" has been defined as a "normal process of increase in size of an organism as a result of accretion of tissue similar to that originally present" and "an abnormal formation, such as a tumor." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY, p. 720-21 (1994). This section further defines a "new" growth as "a neoplasm, or tumor." Id. A "neoplasm" is defined as "any new and abnormal growth; specifically a new growth of tissue in which the growth is uncontrolled and progressive." Id. at 417. There is no evidence to establish that this is an active disorder. The examination also did not show any residuals warranting a minimum rating of 10 percent under Diagnostic Code 8003. The Veteran indicated that he asymptomatic and had not had a ganglion cyst at any time after filing his claim. It appears he is not receiving current treatment for the ganglion cysts disability. The Veteran is employed on a full-time basis without evidence of lost time from work during the previous twelve months. The examining physician diagnosed the ganglion cysts disability is currently in remission and concluded that there were no significant effects upon the Veteran's usual occupation or upon his daily activities. Because no residuals of the ganglion cyst disability have been found and objectively attributed thereto, there are no residuals to rate. The Board finds that the noncompensable, zero percent rating is appropriate for the entire appeal period under Diagnostic Code 8003. See 38 C.F.R. § 4.31 ("In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met"). In sum, the Board has considered the application of other diagnostic codes in order to afford the Veteran a compensable rating but does not find any raised by the medical evidence. The Board recognizes that the evidence supporting the Veteran's claim for a compensable rating for includes his statements regarding the severity of his ganglion cysts disability. The Board has also considered the Veteran's lay statements that his disabilities are worse than currently evaluated. In evaluating a claim for an increased schedular disability rating, however, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. Massey v. Brown, 7 Vet. App. 204, 208 (1994). The Board is not free to ignore VA's duly promulgated regulations, which include the Rating Schedule. Franklin v. Brown, 5 Vet. App. 190, 193 (1993). The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C.A. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Furthermore, in rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. That involves specialized knowledge or training in identifying injuries and diseases of the wrists, especially involving muscles, tendons, nerves, and ganglion cysts. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. No factual foundation has been established that the Veteran is otherwise qualified through specialized education, training, or experience to offer a medical diagnosis. Such competent evidence concerning the nature and extent of the Veteran's ganglion cysts disability have been provided by the medical personnel who have examined him during the current appeal period and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which this disability is evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. The Board acknowledges that the Veteran fears the ganglion cysts disability will return in the future and the VA examiner indicated this might happen. Ratings, however, are based on current symptoms. 38 C.F.R. § 4.1. The Board is not free to ignore VA's duly promulgated regulations, which include the Rating Schedule. Franklin v. Brown, 5 Vet. App. 190, 193 (1993). What might happen in the future does not control the assigned rating. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is clear that allegations of a future disability are not sufficient for an award of compensation. Degmetich v. Brown, 104 F.3d 1328, 1331 (1997). As set forth above, under the Rating schedule, the Veteran's ganglion disability is currently at a noncompensable level and there can be no present-day award for whatever level of disability the Veteran may incur in the future. As the assignment of a rating reflects the current level of impairment only, the Veteran can always file a new claim for any future increase in the disability. The Board concludes that there have been no clinical findings to show that the ganglion disability meets the criteria for a compensable rating at any time during the relevant period. As the assigned noncompensable evaluation reflects the actual degree of impairment shown since the date of the grant of service connection for the Veteran's ganglion cysts disability, there is no basis for staged ratings for this claim. As the preponderance of the evidence is against a compensable rating for ganglion cysts, bilateral wrists, the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the Veteran's current disability level and symptomatology to the Rating Schedule, the degree of disability is contemplated by the Rating Schedule and the assigned schedule ratings are, therefore, adequate and no referral to an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). In other words, the Board finds that the rating criteria reasonably describe the Veteran's disability and symptomatology, which is at best, slight limitation of palmar flexion, which is contemplated by the Rating Schedule under Diagnostic Codes 5215, 5307-09, 7819, and 8003 and the Veteran does not presently have any symptomatology not already contemplated by the Rating Schedule. In this regard, there is no evidence that the symptomatology has necessitated frequent periods of hospitalization or marked interference with employability. Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Total Disability Rating for Compensation Based on Individual Unemployability During the appeal period, the Veteran has not expressly raised and the record does not reasonably raise a claim for total disability rating for compensation based on individual unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). The record does not reflect that, at the time of filing his claims, Veteran was unemployed. The most recent VA examination in September 2012 reflected the Veteran was still employed as a bartender. Therefore, in the circumstances of this case, the Board declines to take jurisdiction over a total disability rating claim. ORDER Entitlement to a compensable rating for ganglion cysts, bilateral wrists, is denied. REMAND The Veteran filed his claim for a compensable rating for his back disability in March 2011. Shortly thereafter, he provided to VA an authorization to obtain medical records from a private physician, Dr. I. Chukwu, whose practice is located in Houston, Texas. The Veteran indicated in the authorization that Dr. Chukwu took X-rays of his back and found an abnormality in his lower back. The Veteran also stated that Dr. Chukwu referred the Veteran to an unidentified physical therapist for further treatment. The Veteran argued the X-rays showed he had a problem that is getting worse as he ages. No attempt has been made to obtain these records despite the Veteran's request for VA's assistance to obtain the records. The Board has determined that the records are relevant and there is a reasonable possibility that the records could help substantiate the claim. See Golz v. Shinseki, 590 F.3d 1317, 1322 (Fed. Cir. 2010) (discussing records from the Social Security Administration). Finally, unlike his ganglion disability, the Veteran has presented evidence that the September 2012 VA examination occurred during an inactive phase of his low back disability such as no pain on motion, but the Veteran reported flare-ups of pain 5/10 and he switched jobs to accommodate his disability. Therefore, the Veteran should be afforded a new VA examination during an active phase, if feasible. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to submit or authorize VA to obtain the medical records Dr. I. Chukwu as well as the records of the physical therapist that Dr. Chukwu referred the Veteran to for treatment and any other medical provider who has treated the Veteran for his low back disability during the applicable appeals period. All efforts to obtain these records must be documented in the file. The RO should make two attempts to obtain these records once authorization is obtained, unless the first attempt reveals that further attempts would be futile. If private records are identified, but not obtained, VA must notify the Veteran of (1) the identity of the records sought, (2) the steps taken to obtain them, (3) that the claim will be adjudicated based on the evidence available, and (4) that if the records are later obtained, the claim may be readjudicated. 2. After the record development is completed, provide the Veteran with a VA spine examination during an active phase or flare-up of symptoms of his low back disability, if feasible. The claims file should be made available to the examiner in conjunction with the examination. All necessary testing should be conducted. The examiner is asked to: a). Determine the current musculoskeletal severity of the Veteran's low back disability in accordance with VA rating criteria. b). The examiner determine if there are any neurologic manifestations of the Veteran's service-connected low back disability and shall include any indicated diagnostic tests and studies. A complete rationale for any opinion offered should be provided. 3. After the development requested is completed, readjudicate the claim for a compensable rating for the Veteran's low back disability. If the benefit sought remains denied, furnish the Veteran and his attorney a supplemental statement of the case and a reasonable period to respond, and then return the case to the Board. 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). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs