Citation Nr: 1804821	
Decision Date: 01/25/18    Archive Date: 02/05/18

DOCKET NO.  14-17 343	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE


Entitlement to a rating for a back disability in excess of 40 percent since November 11, 2011.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Kutrolli, Associate Counsel





INTRODUCTION

The Veteran served honorably in the United States Air Force from October 1964 to February 1989. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2012 and March 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

Additional development is necessary before the claim on appeal can be decided.  

First, the Veteran has asserted that his condition has worsened since the last examination.  When an appellant asserts that the severity of a disability has increased since the most recent VA examination, an additional examination may be appropriate. VAOPGCPREC 11-95 (Apr. 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994).  

In this case, the Veteran was last afforded a VA examination in September 2011.  There is evidence to indicate that the Veteran has received additional back surgeries to address his condition.  According to the record, he underwent posterior lumbosacral L5, S1 decompression and interbody fusion with pedicle screw fixation on April 17, 2013.  Then on February 6, 2015, he underwent surgery for placement of epidural dorsal column stimulator paddle and lead, and placement of Boston Scientific rechargeable pulse generator.  This tends to indicate that the Veteran's condition has worsened; although the evidence obtained following this remand may ultimately be insufficient for a higher rating.  Nevertheless, as it has been more than 6 years since the Veteran's last examination and there is evidence of a possible worsening of the Veteran's back disability, a new examination is warranted.  A remand is also warranted to obtain outstanding private and VA medical records related to the claim.

Accordingly, the case is REMANDED for the following action:

1. Request and obtain any relevant and outstanding medical records, to include outstanding private medical records.  The AOJ should ask the Veteran to provide the names and locations of any facilities that might contain relevant medical records so as to prevent wasted efforts.  All attempts to obtain any identified records should be noted in the record.  If any identified records cannot be obtained the Veteran should be notified of this fact. 

2. Then, schedule the Veteran for a new examination to assess the current severity of his back disability.  The examiner should thoroughly review the claims file.  The examiner must note whether there is evidence of unfavorable ankylosis of the entire thoracolumbar spine.

The examiner should also describe in detail all symptomatology reported by the Veteran.  The examiner should also indicate the degree of functional impairment resulting from the Veteran's service-connected back disability.  

If any opinion is offered as part of this examination, a complete rationale must be provided in support of this opinion.  

3. Finally, readjudicate the claim.  If any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for a response.  After the Veteran is given an opportunity to respond, the case should be returned to the Board.

The appellant 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 for additional development or other action must be handled in an expeditious manner.  38 U.S.C. §§ 5109B, 7112 (2012).



_________________________________________________
B. MULLINS
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).