Citation Nr: 0003749 Decision Date: 02/14/00 Archive Date: 02/15/00 DOCKET NO. 92-23 250 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUE The propriety of the initial 20 percent rating assigned for a low back disability (now characterized as a lumbosacral strain with degenerative joint disease). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and D.M. ATTORNEY FOR THE BOARD K. Parakkal, Counsel INTRODUCTION The veteran served on active duty from August 1986 to January 1989. In a July 1989 decision, the RO denied the veteran's claim of service connection for spondylosis and granted his claim of service connection for a lumbosacral strain (rated 20 percent). Thereafter, he appealed to the Board of Veterans' Appeals (Board) for service connection for spondylosis and for a higher rating for a lumbosacral strain. In March 1994 and May 1996, the Board remanded the case to the RO for further development. In 1999, the RO granted service connection for spondylosis (or degenerative joint disease) and noted that such was part and parcel of his already service-connected lumbosacral strain. In light of the RO's decision, the service-connected low back disability will now be characterized as a lumbosacral strain with degenerative joint disease. In a September 1996 statement, the veteran's representative withdrew from appellate consideration the veteran's claim for an increased rating for a left kidney disorder; as such, this matter is no longer before the Board. REMAND The law requires full compliance with all orders in this remand. Stegall v. West, 11 Vet. App. 268 (1998). Although the instructions in this remand should be carried out in a logical sequence, no instruction in this remand may be given a lower order of priority in terms of the necessity of carrying out the instruction completely. As an initial matter, it is noted that in letters to VA, in January 2000, the veteran indicated that he had been receiving ongoing medical treatment at the VA facility in Hines, Illinois, since June 1999. He also indicated he had received treatment at the Family Medical Center, located in Middletown, Rhode Island, from 1997 to 1999; and he provided a release for such records. It is noted that the RO has not yet requested the aforementioned records. The Court has held that VA treatment records pertaining to the period prior to a Board decision are constructively deemed to be before the Board. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Because the veteran's statements indicate that all relevant medical records, both VA and private, have not been associated with the claims folder, the veteran's case must be remanded again for further development. Additionally, it is noted that the veteran's claim for a higher rating for a lumbosacral strain with degenerative joint disease has been pending for some time. The Board remanded the veteran's claim in 1994 and 1996 as the record was insufficient to make an informed decision. Pursuant to the Board's remands, the veteran was examined by VA, on numerous occasions in 1994, 1996, and 1997. Additional examinations were scheduled in August and September 1999 (at the VA facility in Providence, Rhode Island) as the RO felt that the record failed to adequately reflect the extent of the veteran's functional impairment due to his service- connected low back disability. The veteran failed to report for both the August and September 1999 examinations and never provided a reason for his absence. In an electronic mail message to the RO, in January 2000, the veteran's representative indicated that the veteran had permanently moved to Illinois (from Rhode Island); however, the date of his move was not specified. When a claimant fails to report for an examination scheduled in conjunction with a claim for an increased rating, the claim shall be denied. 38 C.F.R. § 3.655(b) (1999). Copies of the letters from the VA medical facility notifying the veteran of the date, time, and place to report for the examinations (scheduled in August and September 1999) are not in the claims folder. Inasmuch as it is unclear whether the veteran received adequate notice of the examinations in question, the veteran should be scheduled for another VA examination, with notification of the date, time, and place of the examination being made a part of the record. The veteran should understand, however, that the duty to assist is not a one-way street; he is obligated to comply with VA's requests for information, report for VA examinations, and keep VA timely informed of his whereabouts or he may risk a denial of his claim or possibly a further delay in the adjudication of his claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.326, 3.327, 3.655 (1999); Hyson v. Brown, 5 Vet. App. 262 (1993); Olson v. Principi, 3 Vet. App. 480 (1992); Wood v. Derwinski, 1 Vet. App. 190 (1991). Accordingly, this case is REMANDED for the following actions: 1. The RO should contact the veteran and ask him to furnish the names and addresses of all VA and non-VA medical providers who have treated him for a low back disability since his service discharge, including but not limited to the VA facilities in Illinois, New York, and Rhode Island and the Family Medical Center located in Middletown, Rhode Island. The RO should then contact the identified sources and obtain copies of the records, following the procedures of 38 C.F.R. § 3.159 (1999). 2. The veteran should be scheduled for VA orthopedic and neurological examinations to evaluate the nature and severity of his service-connected low back disability. The claims folder and a copy of the Board's remand must be made available to the examiners for review prior to the examinations. Testing should include X-ray studies and complete observations of the ranges of motion of the low back. All findings should be reported in detail. The examiner should be asked to determine whether the low back exhibits weakened movement, excess fatigability, or incoordination attributable to the service-connected low back disability; and if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. The examiner should be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or on repeated use over time. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. The examiner should also record any objective displays of pain. The veteran must be properly informed of the scheduled examinations, and he should be given notice of the consequences of failure to report for the examinations, including an explanation of the provisions of 38 C.F.R. § 3.655. If the veteran does not report for the examinations, the claims folder should include clear documentation of his failure to report, including a statement as to whether he failed to appear without notice, or whether he requested cancellation or postponement and rescheduling of the examinations. 3. The RO should readjudicate the veteran's claim. If the benefit being sought by the veteran is not resolved to his satisfaction, he and his representative should be sent supplemental statement of the case. After the veteran and his representative have been given an opportunity to respond to the supplemental statement of the case, the claims folder shall be returned to the Board for further appellate review. No action is required of the veteran until he receives further notice. The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. G. H. SHUFELT Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).