Citation Nr: 1722980 Decision Date: 06/21/17 Archive Date: 06/29/17 DOCKET NO. 11-13 769 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an initial rating for service-connected low back disability in excess of 10 percent for the period from April 5, 1991 to July 8, 2007, in excess of 10 percent from June 16, 2008 to May 23, 2010, and in excess of 20 percent from May 24, 2010. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1980 to February 1981 and from July 2007 to June 2008. The matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In the August 2010 rating decision, the RO granted, for the service-connected low back disability, an evaluation of 10 percent, from April 5, 1991 until July 8, 2007, and an evaluation of 10 percent, from June 16, 2008. During the pendency of this appeal, the RO issued a May 2010 rating decision, which increased the rating to 20 percent effective May 24, 2010. As these increases do not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran last underwent a VA examination for his service-connected disability in May 2010. Since that time, the record reflects that in multiple statements to VA medical providers, the Veteran reported that his chronic back pain has increased, and has requested the Board for a re-evaluation of his back disability. See, e.g., October 2012 VA medical record; January 2011 VA medical record (new pain management method involving lumbar corset); May 2017 Appellant's Brief. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Moreover, since the Veteran's May 2010 VA back examination, the United States Court of Appeals for Veterans Claims (Court) issued a decision, in the case of Correia v. McDonald, 28 Vet.App. 158, 169-70 (2016), which affects the Veteran's case. In Correia, the Court determined that additional requirements must be met prior to finding that a VA examination is adequate. See id. Although the Board sincerely regrets the delay, it is necessary to ensure that the Veteran's VA examination complies with the requirements of the holding in Correia. Therefore, in light of the above, the Board finds that a VA examination is necessary to ascertain the current severity of his back disability. 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 lower back since May 24, 2010. 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 VA medical records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected low back disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is instructed to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including 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 evaluating the Veteran's service-connected low back disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees of the lower back. In so doing, the examiner should test the Veteran's range of motion in 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 clearly explain so in the report. The examiner should also comment on whether there is any ankylosis; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; or, the symptomatic removal of semilunar cartilage. He or she should also address whether the Veteran has recurrent subluxation or lateral instability, and if so, comment as to whether such symptomatology is slight, moderate, or severe. The examiner should further state whether there is any malunion or nonunion of the tibia and fibula. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. 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. Because it is important "that each disability be viewed in relation to its history [,]" (38 C.F.R. § 4.1), 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. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If any benefit sought on appeal is 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 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 2015). _________________________________________________ YVETTE R. WHITE 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) (2016).