Citation Nr: 1625451	
Decision Date: 06/27/16    Archive Date: 07/11/16

DOCKET NO.  11-33 494	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial rating higher than 10 percent prior to June 13, 2011, and to a rating higher than 20 percent thereafter, for a low back disability.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

D. Whitehead, Counsel



INTRODUCTION

The Veteran served on active duty from May 2006 to April 2009.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida that assigned an initial 10 percent rating for the service-connected low back disability.  

In an April 2012 rating decision, the RO assigned a 20 percent rating for the Veteran's low back disability, effective from June 13, 2011.  As the Veteran is presumed to seek the maximum available benefit for a disability, the increased rating of 20 percent does not resolve the appeal.  See A.B. v. Brown, 6 Vet. App. 35, 38 (1993).

The record before the Board consists of records included within electronic files known as Virtual VA and the Veterans Benefits Management System.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

Additional development is needed before a decision can be reached in this case.

The record reflects that the Veteran last underwent a VA examination to assess the severity of his service-connected low back disability in April 2012.  In May 2012, he underwent lumbar spine diskectomy and intervertebral fusions surgery.  There is no subsequent medical evidence of record showing treatment or assessment of his disability.  VA's duty to assist includes providing the Veteran a thorough and contemporaneous examination.  Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012).  The April 2012 examination report is too remote in time to adequately assess the current manifestations of the Veteran's low back disability.  Consequently, a remand is needed in order to provide the Veteran with a new examination.    

While on remand, the RO or the Appeals Management Center (AMC) must take appropriate action to obtain all outstanding VA and private medical records pertinent to the claim.

Accordingly, the case is REMANDED for the following action:

1.  Undertake appropriate development to obtain any outstanding medical records pertinent to the claim.

2.  Then, arrange for the Veteran to be scheduled for an examination by an examiner with sufficient expertise to determine the current degree of severity of his service-connected low back disability.  All pertinent evidence of record should be made available to and reviewed by the examiner.  Any indicated tests and studies should be accomplished, and all clinical findings should be reported in detail.

The RO or the AMC must ensure that the examiner provides all information required for rating purposes, to include an assessment of the functional impairment during flare ups and on repeated use.

3.  The RO or the AMC should also undertake any additional development deemed necessary.

4.  Then, the RO or the AMC should readjudicate the claim.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board for further appellate review.

By this remand, the Board intimates no opinion as to any final outcome warranted. 
  
The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999).

This REMAND must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




_________________________________________________
T. REYNOLDS
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).