Citation Nr: 1801017 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-16 502A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an increased disability rating in excess of 20 percent for service-connected cervical spine fusion with right arm radicular pain. REPRESENTATION Veteran represented by: N. Albert Bacharach, Jr., Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. F. Brandau, Associate Counsel INTRODUCTION The Veteran has active duty service in the United States Army from October 1977 to January 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office. In August 2017 the Veteran testified before the undersigned Veterans Law Judge at VA's Central Office in Washington, D.C. A transcript of the hearing was prepared and added to the record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Regrettably, a remand is necessary for proper development of the issue. The Veteran testified that he is currently not working and is receiving disability benefits from the Social Security Administration (SSA). Records relevant to the Veteran's disability benefits claim do not appear in the file and should be obtained from SSA. Additionally, the Veteran last underwent VA examination in connection with this claim in April 2012. The Veteran's testimony in August 2017 suggests that his disability may have worsened. Thus, the Board finds that on remand an additional examination should be performed. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997). In this regard, the Veteran has reported that he has right arm weakness and pain that has radiated from his neck, but there is no specific diagnosis of right upper extremity radiculopathy. On remand the VA examiner should determine whether the Veteran has a current diagnosis of right upper extremity radiculopathy. The VA examiner should also describe any functional limitations caused by the Veteran's disabilities, to include the effect on employment. The Veteran's attorney contends that the criteria of the schedular rating criteria are not adequate to compensate the Veteran for his disability. In support of this contention the Veteran's attorney has argued that the Veteran has marked periods of unemployment such that an extraschedular evaluation would be appropriate. See 38 C.F.R. § 3.321(b)(1) (2017). After the requested development is completed, the AOJ should determine whether referral for an extraschedular evaluation is appropriate. The Veteran receives continuous treatment through VA, on remand the AOJ should obtain and associate with the file VA treatment records dated from July 2013 to present. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the record VA treatment records for the Veteran dated from July 2013 to present. All actions to obtain the requested records should be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran and his attorney should be so notified. 2. Obtain records from SSA related to any claims for disability benefits filed by the Veteran. All actions to obtain the requested records should be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran and his attorney should be so notified. 3. After the above, afford the Veteran a VA examination to determine the current severity of his cervical spine disability. The VA examiner should consider the Veteran's right-sided weakness and determine whether he has a current radiculopathy diagnosis of the right upper extremity. The VA examiner should also describe any functional limitations caused by the Veteran's cervical spine disability, specifically those that would interfere with certain employment functions. 4. After completing the above development, and any other development deemed necessary, readjudicate the issue on appeal, to include whether referral for extraschedular rating is appropriate. Thereafter, if any benefits sought remain denied, provide a Supplemental Statement of the Case to the Veteran and his attorney and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. 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. §§ 5109B, 7112 (2012). _________________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).