Citation Nr: 1807817 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 13-28 633A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 20 percent for lumbar spine spondylosis. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from July 1955 to July 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2017, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The issues of entitlement to increased ratings for tinnitus, bilateral hearing loss, and the residuals of cold injury to the left lower extremity have been raised by the record in a November 2017 statement, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). 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 AOJ. VA will notify the appellant if further action is required. REMAND Additional development is required in this appeal. At his personal hearing in November 2017 the Veteran, in essence, reported that his back disability was more severely disabling than indicated by the findings of his December 2011 VA examination. He added that the examiner did not properly record his ranges of motion. The Board notes that a contemporaneous examination is required when the "evidence indicates there has been a material change in a disability or that the current rating may be incorrect." 38 C.F.R. § 3.327(a) (2017); see also Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (submission of new evidence or allegation that a disability has worsened may require a new medical examination to be provided, but "mere passage of time between those events does not") VA's duty to assist the Veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on a claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). An adequate orthopedic examination of should record the range of motion for pain on active motion and passive motion and in weight-bearing and nonweight-bearing information, address the necessary findings to evaluate functional loss during flare-ups, or clearly explain why the required testing cannot be completed or is not necessary. See Correia v. McDonald, 28 Vet. App. 158 (2016) (discussing the requirements under 38 C.F.R. § 4.59). Here, the Board finds the Veteran must be provided an adequate VA examination. The Board also notes that the August 2013 Statement of the Case listed as evidence VA treatment records dated from September 2000 to May 2013, but that they are not included in the present appellate record. Therefore, prior to any examination, up-to-date VA treatment records should be obtained. Accordingly, the case is REMANDED for the following action: (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 pertinent VA medical records not yet associated with the appellate record, to include records dated during the period from September 2000 to May 2013. 2. Schedule the Veteran for an examination for opinions as to the current nature and extent of his service-connected lumbar spine spondylosis. The examiner must record the range of motion for pain on active motion and passive motion and in weight-bearing and nonweight-bearing information, must address the necessary findings to evaluate functional loss during flare-ups, or must clearly explain why the required testing cannot be completed or is not necessary. The examiner should also discuss the presence or absence of any neurological disability associated with the low back disorder. If applicable, the affected nerve groups(s) should be identified and assessed as being mild, moderate, moderately severe, severe, or complete. The examiner should summarize the pertinent evidence of record and reconcile any opinions provided with the other evidence of record. All manifest symptoms should be identified. All examinations, tests, and studies must be conducted. The medical reasons for the opinions provided should be set forth in detail. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). Merely saying he/she cannot comment will not suffice. 3. Thereafter, the AOJ should address the issue on appeal. If the benefits sought are not granted to the Veteran's satisfaction, the Veteran and his attorney should be furnished a Supplemental Statement of the Case and 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. §§ 5109B, 7112 (2012). _________________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).