Citation Nr: 1813625 Decision Date: 03/07/18 Archive Date: 03/14/18 DOCKET NO. 14-34 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial rating in excess of 10 percent for myofascial pain disorder to the right trapezius muscle. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States 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 May 2003 to August 2003 and from April 2004 to May 2007. He had service in Southwest Asia from January 2005 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision by the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). In November 2017, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. 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 The Veteran last underwent a VA examination of the spine in October 2012. At that time, there were no to neurological dysfunction. Subsequent records reflect the Veteran's complaints of pain radiating down the right lower extremity. There are conflicting magnetic resonance imaging (MRI) studies with respect to whether the Veteran's neurological complaints are due to his trapezius (thoracic spine) disability. See MRI report dated March 2013 and MRI report dated July 2014. 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). 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"). 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 additional VA examination. Prior to any examination, up-to-date VA treatment records should be obtained 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. Request that the Veteran provide information sufficient for VA to assist him in obtaining copies of private treatment records pertinent to the issue on appeal. Appropriate VA action is required upon receipt of additional information. 2. Obtain all pertinent VA medical records not yet associated with the appellate record. 3. Schedule the Veteran for an examination for opinions as to the current nature and extent of his service-connected myofascial pain disorder to the right trapezius muscle. 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 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. 4. 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 representative 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).