Citation Nr: 1744080 Decision Date: 10/03/17 Archive Date: 10/13/17 DOCKET NO. 13-35 191 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona THE ISSUE Entitlement to a disability rating in excess of 10 percent for a lumbar spine disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from September 2001 to September 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2012 decision of the RO that denied a disability rating in excess of 10 percent for service-connected degenerative joint disease of the lumbar spine. The Veteran timely appealed. In November 2016, the Veteran testified during a hearing before the undersigned at the RO. During the hearing, the undersigned granted the Veteran's request for a 60-day abeyance to submit additional evidence or argument directly to the Board. In January 2017, the Veteran requested more time to submit evidence to the Board. To date, VA has not received any additional response from the Veteran. The Board acknowledges that a purported substantive appeal, which may have been untimely, has been filed on the matter of entitlement to service connection for a bilateral shoulder disability-but has not been certified to the Board. As such, the Board will not accept jurisdiction over the matter at this time. We intimate no opinion regarding timeliness of appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran and his representative when further action is required. REMAND On VA Form 9 submitted in December 2013, the Veteran reported that he sought treatment in April 2012 from his private physician, Dr. Lonquist, for low back pain; X-rays were ordered. Later that same month, the Veteran was referred to a rheumatologist, Dr. Sabahi, for treatment of his low back pain. The RO or VA's Appeals Management Office (AMO) should specifically seek the Veteran's authorization for release of treatment records pertaining to his lumbosacral spine. Here, the Veteran contends that his service-connected lumbar spine disability is more severe than currently rated; and warrants an increased disability rating. Records show that the Veteran last was afforded a VA examination to evaluate the severity of his service-connected lumbar spine disability in April 2012. At that time the Veteran reported that he had morning low back stiffness and increased pain with flare-ups. There was no evidence of radiculopathy. No incapacitating episodes were reported. Since then, the Veteran has described a worsening of the disability. Subsequent MRI scans taken in April 2012 revealed degenerative disc disease in the lumbar spine, and a small disk herniation at L4-L5. In November 2016, the Veteran testified that he "was limping around" because his "back was hurting." He is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). Under these circumstances, VA cannot rate the service-connected lumbar spine disability without further medical clarification. Hence, the Veteran is entitled to a new VA examination. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary contact information and authorization from the Veteran, please request treatment records that pertain to the Veteran's lumbosacral spine from the Veteran's private physician, Dr. Lonquist, and from the Veteran's rheumatologist, Dr. Sabahi, dated from April 2012 to the present date; and associate them with the Veteran's claims file. If, after making reasonable efforts to obtain records identified by the Veteran; and if the RO or AMO is unable to secure such records, the RO or AMO must notify the Veteran and (a) identify the specific records the RO or AMO is unable to obtain; (b) briefly explain the efforts that the RO or AMO made to obtain those records; (c) describe any further action to be taken by the RO or AMO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Obtain the Veteran's outstanding VA treatment records, from November 2013 forward; and associate them with the Veteran's claims file. 3. Afford the Veteran a VA examination, for evaluation of the service-connected lumbar spine disability and for any functional impairment, including during flare-ups. Specifically, the examiner should describe any functional loss during flare-ups, the duration and frequency of such flare-ups, and describe any incapacitating exacerbations. The examiner should specifically report the ranges of motion of the thoracolumbar spine. Ranges of motion testing should be conducted in active motion, passive motion, weight-bearing, and non-weight-bearing; and all results reported. If any such testing is not warranted for the disability in question, the examiner should clearly explain why that is so. 4. After ensuring that the requested actions are completed, re-adjudicate the claim on appeal. If the benefits sought are not fully granted, furnish a supplemental statement of the case (SSOC) and then return the appeal to the Board, if otherwise in order. No action is required of the Veteran and his representative until they are notified by the RO or AMO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2016). The Veteran has the right to submit additional evidence and argument on the matter that 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). _________________________________________________ H. N. SCHWARTZ 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).