Citation Nr: 1800686 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 11-32 371A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an increased rating in excess of 20 percent for lumbar strain, with bulging annulus, with narrowing of the spinal canal at L5-S1, and minimal bulging annulus at L3-L4 and L4-L5 of the lumbar spine. ATTORNEY FOR THE BOARD K. Wysokinski, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1974 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. This issue was previously before the Board in February 2012 when it was remanded for final adjudication by the RO through issuance of a Statement of the Case. As this has now been completed, the matter is appropriately before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the additional delay that will result from remanding this claim again, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. A remand is necessary to obtain an updated VA medical examination because the evidence of record indicates that the Veteran's disability has worsened and the most recent examination of record is too old for rating purposes. When available evidence is too old for an adequate evaluation of the Veteran's current disability, VA's duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). To that effect, the Board notes that the Veteran's spine examination is from August 2009, and that this examination is too old for an adequate evaluation of the Veteran's disability. Further, the Veteran's medical treatment records indicate a worsening of his disability since this VA examination. See October 2009 and February 2012 VA Medical Records. Where there is evidence that the condition has worsened since the last examination, the Veteran is entitled to a new VA examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain all outstanding VA medical records. 2. Ask the Veteran to identify any private medical care providers who treated him for his service-connected spine disability. After securing any necessary authorization, obtain records from any identified providers. 3. Schedule the Veteran for any appropriate VA examinations to determine the current nature, severity and occupational impact of his spine disability. The claims file should be made available to and reviewed by the examiners and all necessary tests should be performed. All findings should be reported in detail. The appropriate examiner should identify spine pathologies found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. If appropriate, full range of motion testing must be performed where possible. Any joint(s) involved should be tested in both active and passive motion, in weight-bearing and non weight-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 why that is so. If appropriate, the examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If appropriate, the examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his spine symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should note that the VA CLINICIAN'S GUIDE requires the examiner to estimate the range of motion "per [the] Veteran." See VA CLINICIAN'S GUIDE at Ch. 11. 4. After the above development has been completed, including any additional development deemed necessary, readjudicate the remanded issue. If any of the benefits sought on appeal remain denied, furnish the Veteran a supplemental statement of the case and afford him the opportunity to respond before the file is returned to the Board for further consideration. 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 2014). _________________________________________________ Cynthia M. Bruce 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) (2017).