Citation Nr: 0735813 Decision Date: 11/14/07 Archive Date: 11/26/07 DOCKET NO. 05-26 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an increased rating greater than 20 percent for back sprain, degenerative joint disease (DJD) and degenerative disc disease (DDD) with muscle imbalance in the pelvic girdle. REPRESENTATION Appellant represented by: Kentucky Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Marcus, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty for various periods in the Air Force and National Guard from January 1974 to January 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The veteran had a hearing before the Board in April 2006 and the transcript is of record. During the veteran's hearing, she testified that her back condition causes her mental anguish, to include depression, because she can no longer do the activities she used to enjoy. This issue has never been considered by the RO and therefore the issue of entitlement to service connection for a psychiatric condition, secondary to a service connected back disability, is REFERRED to the RO for proper adjudication. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required on her part. REMAND The veteran asserts her back condition is far worse than the current rating reflects. Specifically, she alleges neurological manifestations, 6 weeks of missing work, and general interference with her ability to maintain a job and continuing in activities she used to enjoy. The Board first notes that the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006). Here, no letter was sent advising the veteran of the evidence necessary to substantiate her claim, of the VA's duties and her duties to supply the evidence and how the VA would assist her in substantiating her claim in general. The veteran's representative submitted a statement in June 2005 waiving "DTA" (presumably, duty to assist) and requesting the RO to adjudicate the claim with the evidence of record. It is not clear what aspect of the VA's duty to assist the veteran was waiving. Since the veteran has never received a VCAA letter, the Board concludes the RO must take corrective action. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2006). Here, the veteran was last afforded a VA examination in March 2005, over two years ago, where the examiner found no objective indications of neurological manifestations despite the veteran's subjective complaints. Since that time, the veteran has submitted private treatment records from February 2006 to April 2006 indicating nerve blocking procedures in attempt to treat radiation down her bilateral lower extremities. An April 2006 MRI, moreover, indicates spondylolisthesis with severe facet degenerative change, among other things. The private physician indicated diagnoses of lumbar DDD, lumbar facet syndrome and sacroiliac arthropathy. During the veteran's hearing, she further testified she missed 6 weeks of work in the last year due to incapacitating episodes. She also testified that she is currently seeing a neurosurgeon for possible surgery in the near future. Up until now, she testified she had successfully avoided surgery by using other treatment methods. These treatment methods, she alleges, are no longer effective and thus surgery may be her only option. The medical records and the veteran's testimony indicate the veteran's condition may have worsened since she was last examined. A new VA examination is indicated. Accordingly, the case is REMANDED for the following action: 1. Please send the veteran complete VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) for the issue of an increased rating for back sprain, with degenerative joint disease and degenerative disc disease. 2. Ask the appellant to complete release forms authorizing VA to request her treatment records from any and all private providers for her low back since February 2004. These medical records should then be requested. 3. Obtain the veteran's medical records for treatment of the low back from the VAMC in Louisville, Kentucky from August 2005 to the present, to include MRI and x- ray reports. 4. After obtaining the above VA and private medical evidence, to the extent available, schedule the veteran for an appropriate VA examination to evaluate the current severity of her service-connected back condition to include neurological manifestations. The claims folder should be reviewed by the examiner in conjunction with the examination. 5. After the above is complete, readjudicate the veteran's claim. If the claim remains denied, issue a supplemental statement of the case (SSOC) to the veteran and her representative, and they should be given an opportunity to respond, before the case is returned to the Board. The veteran 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). No action is required of the veteran until further notice. However, the Board takes this opportunity to advise the veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of her claim. Her cooperation in VA's efforts to develop her claim, including reporting for any scheduled VA examination, is both critical and appreciated. The veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. The 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. _________________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).