Citation Nr: 1630132 Decision Date: 07/28/16 Archive Date: 08/04/16 DOCKET NO. 11-34 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for lumbar spondylosis. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1977 to August 1979. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. During the pendency of the appeal, in a July 2013 rating decision, the RO temporarily increased the evaluation for the Veteran's low back disability to 100 percent effective December 13, 2012 and assigned a 20 percent evaluation effective March 1, 2013. Nevertheless, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue remains on appeal for the period prior to December 13, 2012, and the period since March 1, 2013. In addition, during the course of the appeal, the Veteran submitted a claim for a total disability evaluation based upon individual disability due to service-connected disability (TDIU). See January 2011 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). That claim was denied by the RO in a January 2012 rating decision, and he filed a notice of disagreement in February 2012. However, the Veteran did not submit a substantive appeal for that issue following the issuance of a March 2014 statement of the case (SOC). Therefore, that issue no longer remains in appellate status, and no further consideration is required. Indeed, the Veteran has not raised the issue of entitlement to TDIU since the issuance of the SOC. This appeal consists of a paper claims file, 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 The Veteran was most recently afforded a VA examination in connection with his claim in December 2011. Since that examination, he underwent low back surgery in December 2012 after which he complained of back spasms, which were not previously noted during the VA examination. See December 2012 VA treatment record. VA's General Counsel has indicated that, when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Board finds that a VA examination is necessary to ascertain the current severity and manifestations of the Veteran's service-connected lumbar spondylosis. 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 low back disability. 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 obtain any outstanding, relevant VA treatment records. 2. After completing the above development, the Veteran should be afforded a VA examination to determine the current severity and manifestations of his service-connected lumbar spondylosis. 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. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, such as observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's lumbar spondylosis. In particular, he or she should provide the range of motion of the thoracolumbar spine in degrees during active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should so state in the report and explain the basis for that determination. He or she should also indicate whether there is any form of ankylosis. 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). In addition, the examiner should state the total duration of any incapacitating episodes over the past 12 months and identify any neurological manifestations of the disability. 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. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. In the event that the Veteran does not report for the scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address and to his representative. It should also be indicated whether any notice sent was returned as undeliverable. 4. The AOJ should review the claims file and ensure that the foregoing development actions have been conducted and completed. 5. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 6. When the development has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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) (2015).