Citation Nr: 0907941 Decision Date: 03/04/09 Archive Date: 03/12/09 DOCKET NO. 07-34 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for osteopenia with compression fractures at T-12, L-1 and L-3, to include as secondary to service-connected moderate degenerative arthritis. 2. Entitlement to an increased initial rating for moderate degenerative arthritis (claimed as lumbar strain), currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1959 to January 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, in June 2006 and March 2007. The former denied service connection for osteopenia with compression fractures at T-12, L-1 and L-3 on a direct basis and the latter granted service connection for moderate degenerative arthritis. The Veteran presented testimony at the RO before a Decision Review Officer (DRO) in August 2007. He also presented testimony at a personal hearing before the undersigned Veterans Law Judge in June 2008. Transcripts from both hearings are of record. The Veteran submitted additional evidence directly to the Board at the time of his June 2008 hearing, which was accompanied by a waiver of RO consideration. The evidence will therefore be considered in this decision. 38 C.F.R. § 20.1304 (2008). The Veteran has been diagnosed as having degenerative disc disease and spinal stenosis. In an April 26, 2007 VA Form 21-4138, he indicated he wished to file a claim for service connection for a cervical spine disorder and sciatic neuropathy of the left lower extremity, both as secondary to his service-connected moderate degenerative arthritis. In an August 2007 VA Form 21-4138, he sought service connection for bilateral hearing loss and tinnitus and an increased rating for his service-connected left ankle condition. In a January 2008 VA Form 21-4138, he appears to be making a claim for service connection for both hips as secondary to his service- connected moderate degenerative arthritis. Review of the claims folder reveals that the RO has acknowledged receipt of these claims, but it is unclear whether any have been adjudicated. See VA Form 21-6789, dated February 5, 2008; VA letter to the Veteran, dated February 25, 2008. As such, they are REFERRED to the RO for appropriate action. 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. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. Such development would ensure that his due process rights, including those associated with 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2008), are met. The Veteran has consistently sought service connection for osteopenia with compression fractures at T-12, L-1 and L-3 on a direct basis. In his February 2008 VA Form 9, however, he raised the issue of service connection for this disorder on a secondary basis, indicating that he "should have noted osteopenia of these compression fractures to be secondary to service connection stated in my previous Form 9." In a recent decision, the Court of Appeals for Veterans Claims (Court) held that separate theories in support of a claim for a particular disability are to be adjudicated under one claim. See Robinson v. Mansfield, 21 Vet. App. 545, 550- 51 (2008), citing Bingham v. Principi, 421 F.3d. 1346, 1349 (Fed. Cir. 2005). As such, separate adjudication of the Veteran's disability under a separate theory of entitlement, in this case, service connection for osteopenia with compression fractures at T-12, L-1 and L-3 on a secondary basis, is not warranted. Since review of the claims folder does not reveal that any action has been taken on the claim for service connection on a secondary basis, it must be remanded to the RO/AMC for appropriate action. Proper notice of how to substantiate a claim for service connection on a secondary basis must also be provided to the Veteran. The VA compensation and pension (C&P) spine examinations that were conducted in May 2006 and February 2007 do not take into account the functional impairment of the Veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities pursuant to 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2008) and DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). In light of the foregoing, and in light of the fact that the Veteran testified that his disability has worsened since the February 2007 VA examination, the Board finds that a remand is necessary to schedule the Veteran for a contemporaneous VA orthopedic examination for the purpose of ascertaining the current severity of his service-connected moderate degenerative arthritis. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993) (when a Veteran claims that his condition is worse than when originally rated, and the available evidence is too old for an adequate evaluation of the Veteran's current condition, the VA's duty to assist includes providing a new examination). The Board also finds that an examination is necessary to determine whether the Veteran's osteopenia with compression fractures at T-12, L-1 and L-3 is proximately due to, or the result of, his service-connected moderate degenerative arthritis, or whether his service-connected moderate degenerative arthritis has aggravated his osteopenia with compression fractures at T-12, L-1 and L-3. See 38 C.F.R. § 3.310 (2008). Recent VA treatment records should also be obtained. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, as the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2008). Accordingly, the case is REMANDED for the following action: 1. Notify the Veteran (1) about the information and evidence not of record that is necessary to substantiate a claim for service connection for osteopenia with compression fractures at T-12, L-1 and L-3 on a secondary basis; (2) about the information and evidence that VA will seek to provide; and (3) about the information and evidence that he is expected to provide. 2. Obtain the Veteran's complete treatment records for his back from the Tampa, Florida, VAMC and the Brooksville Community Based Outpatient Clinic, dated since September 2007. 3. Thereafter, schedule the Veteran for a VA orthopedic examination. The claims file and a copy of this remand must be made available to and reviewed by the examiner. All necessary tests, including x-rays if indicated, should be conducted. The examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected moderate degenerative arthritis of the spine. The examiner should identify any orthopedic and neurological findings related to the service-connected disability and fully describe the extent and severity of those symptoms. The examiner should conduct range of motion testing of the lumbar spine. Whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including during flare- ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups or when the lumbar spine is used repeatedly. All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. With regard to any neurological disability resulting from the service- connected disability, the specific nerve(s) affected should be specified, together with the degree of paralysis caused by service-connected disability. The examiner should document the number of weeks, if any, during the past 12 months, that the Veteran has had "incapacitating episodes," defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." The examiner is also asked to provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's moderate degenerative arthritis either (a) caused or (b) aggravated his osteopenia with compression fractures at T-12, L-1 and L- 3. A rationale for any opinion expressed should be provided. If the examiner is unable to offer the requested information without resort to speculation, the report should so state. 4. Finally, readjudicate the claims, to include consideration of whether service connection for osteopenia with compression fractures at T-12, L-1 and L- 3 is warranted on a secondary basis. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC), and given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the 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 or by the U.S. 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.A. §§ 5109B, 7112 (West Supp. 2008). _________________________________________________ P.M. DILORENZO 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) (2008).