Citation Nr: 1629028 Decision Date: 07/21/16 Archive Date: 08/01/16 DOCKET NO. 10-11 260 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial increased rating for lumbar spine degenerative disc disease with degenerative arthritis, rated as noncompensable between February 12, 2007, and June 5, 2012; as 10 percent disabling between June 6, 2012, and September 3, 2013; and as 20 percent disabling from September 4, 2013, to the present. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran had honorable active duty service from August 1976 to December 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for degenerative joint disease of the lumbar spine and assigned a noncompensable rating effective February 12, 2007. This appeal ensued. In a January 2016 rating decision, the disability was recharacterized as lumbar spine degenerative disc disease with degenerative arthritis and ratings of 10 and 20 percent were assigned effective June 6, 2012, and September 4, 2013, respectively. Despite the increased ratings granted by the RO, the Veteran's appeal remains before the Board. Cf. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). The Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge in May 2016. A transcript is of record. At the time of his hearing, the Veteran submitted additional evidence directly to the Board, which was accompanied by a waiver of RO consideration. The Board has reviewed the evidence submitted and finds that it is duplicative of evidence already considered by the RO. The current record before the Board consists entirely of electronic files known as Virtual VA and the Veterans Benefits Management System (VBMS). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In the January 2016 rating decision that granted the 10 and 20 percent ratings for the Veteran's lumbar spine disability, the RO referenced a VA examination conducted on September 4, 2013. There is no indication from review of the electronic files that this examination has been associated with the Veteran's record. On remand, the RO should make efforts to obtain a copy of the September 4, 2013, examination report referenced in the January 2016 rating decision and have it uploaded into the electronic record. The evidence available to the Board in the electronic file indicates that the Veteran's lumbar spine disability was last evaluated by VA in June 2012, over four years ago. Although the Board acknowledges that the Veteran submitted a back Disability Benefits Questionnaire (DBQ) filled out by a private doctor in July 2014, it is unclear from this examination report whether the Veteran has neurological symptoms associated with his lumbar spine disability. Given the foregoing, the Board finds that a contemporaneous VA examination should be conducted to ascertain the current severity of the Veteran's lumbar spine disability. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2015). Accordingly, the case is REMANDED for the following action: 1. Make efforts to obtain a copy of the September 4, 2013, examination report referenced in the January 2016 rating decision and have it uploaded into the electronic record. If no such examination was conducted, that fact should be documented in the record. 2. Schedule an appropriate VA examination to determine the current nature, extent, and severity of the Veteran's service-connected lumbar spine disability. The examiner is to identify all residuals attributable to the Veteran's service-connected lumbar spine disability. The examiner is to report the range of motion measurements for the lumbar spine, in degrees. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) after repetitive use; (2) during flare-ups; (3) with weight bearing; (4) during active (as opposed to passive) motion; or, (5) as a result of pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. The examiner is to identify any nerve(s) affected by the Veteran's service-connected lumbar spine degenerative disc disease and discuss the extent, if any, of paralysis of the nerves involved. The examiner is to discuss whether the Veteran has any neurologic abnormalities, including, but not limited to, bowel or bladder impairment, as a result of his lumbar spine disability. The examiner must provide a comprehensive report, including complete rationales for all conclusions reached. 3. Readjudicate the claim. If the benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate review, if in order. 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 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). _________________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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).