Citation Nr: 0806862 Decision Date: 02/28/08 Archive Date: 03/06/08 DOCKET NO. 96-15 671 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine, status post L3-4 hemilaminectomy and L3-4-5 foraminotomies. 2. Entitlement to service connection for a bladder disorder, claimed as secondary to the service connected degenerative disc disease of the lumbar spine. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney WITNESSES AT HEARINGS ON APPEAL Appellant, Spouse, and Dr. C.N.B. ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from May 1968 to August 1978. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") on April 2, 2003, which vacated a September 2002 Board decision and remanded the case for additional development. The issue initially arose from rating decisions in March 1995 and May 2000 by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA). The veteran testified at personal hearings before the undersigned Veterans Law Judge in June 2002 and June 2005. His attorney and a private physician presented additional statements at a hearing in November 2007. Copies of the transcripts of those hearings are of record. The case was remanded for further development in April 2004 and December 2005. The Board notes the issue of entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy was addressed in a September 2006 statement of the case. A timely substantive appeal was not submitted and the appeal as to this matter is not perfected. This issue is not before the Board. The Board also notes that a December 2006 rating decision denied entitlement to service connection for a bladder disorder claimed as secondary to the service connected degenerative disc disease of the lumbar spine. The veteran and his attorney were notified of the decision and the appropriate appellate rights by correspondence dated December 13, 2006. During the November 2007 hearing, the veteran's attorney expressed disagreement with the denial of service connection for a bladder disorder. Because the transcript was reduced to writing, the Board accepts the attorney's statements as a timely notice of disagreement. See 38 C.F.R. §20.300 (2007). 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 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty 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. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). A review of the record shows the veteran was notified of the VCAA duties to assist and of the information and evidence necessary to substantiate his claims by correspondence dated in June 2004 and January 2006. The Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. Additional notice as to these matters were provided in March 2006. The Board finds, however, that as this case must be remanded for additional development any remedial notice required as result of the decision in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008), should be provided. The VCAA duty to assist requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim and in claims for disability compensation requires that VA provide medical examinations or obtain medical opinions when necessary for an adequate decision. See 38 C.F.R. § 3.159 (2007). VA has a duty to assist the veteran which includes conducting a thorough and contemporaneous medical examination. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Regarding the issue of service connection for a bladder disorder, claimed as secondary to the service connected degenerative disc disease of the lumbar spine, where a veteran (or in this case, his representative) has submitted a timely notice of disagreement with an adverse decision and the RO has not had to opportunity to issue a statement of the case addressing the issue, the Board should remand the issue to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). In this case, the evidence shows that while VA medical examination reports have been associated with the claims folder, VA treatment records, other than those included in records obtained from the Social Security Administration, were last obtained and added to the claims file in August 1998. The Board also notes that a June 2006 VA fee basis compensation and pension examination report referred to the results of a June 2006 electromyography (EMG) study, but that this report is not included in the present appellate record. At the November 2007 hearing Dr. C.N.B. stated he had not seen this report and indicated that it was pertinent to the veteran's claim. In light of the inconsistent medical evidence of record, the Board finds an additional examination by an appropriate physician is required to assess the present impairment and to reconcile the medical opinions of record. Accordingly, the case is REMANDED for the following action: 1. The veteran should be provided any additional VCAA notice required as result of the decision in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008). This includes notification (1) that to substantiate his claim he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on his employment and daily life, (2) generally, of the diagnostic code criteria necessary for entitlement to a higher disability rating that would not be satisfied by demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on his employment and daily life, (3) that if an increase in disability is found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from 0% to as much as 100% (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life, and (4) of examples of the types of medical and lay evidence that he may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation (such as competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability). 2. Appropriate efforts should be taken to obtain copies of all pertinent VA treatment records dated from July 1998. 3. The veteran should be scheduled for an appropriate examination by a physician(s) with expertise in orthopedic and neurologic disabilities for an opinion as to the current nature and extent of his service-connected degenerative disc disease of the lumbar spine. A current EMG study must be provided and complete range of motion studies must be provided with discussion as to any additional limitation of motion due to pain, weakness, fatigability, incoordination or pain on movement of a joint, including use during flare-ups. The physician should address the extent to which at any time during the course of this appeal the service-connected disability may have been manifest by pronounced intervertebral disc syndrome with symptoms compatible with sciatic neuropathy and little intermittent relief or involved incapacitating episodes requiring bed rest and treatment by a physician. The opinion should also address the extent to which the disability may interfere with employment. Prior to the examination, the claims folder must be made available to the physician for review of the case. A notation to the effect that this record review took place should be included in the report. The physician(s) should provide information demonstrating an acquired expertise in treating orthopedic and neurologic disabilities. Opinions should be provided based on the results of examination, a review of the medical evidence of record, and sound medical principles. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 4. The veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent, must be associated with the claims folder. The veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. VA regulations provide that when a claimant fails to report for a scheduled medical examination, without good cause, a claim for an increase shall be denied without review of the evidence of record. 38 C.F.R. § 3.655 (2007). 5. The RO is to provide the veteran and his representative a Statement of the Case (with an appropriate period of time to respond) pertaining to the issue of entitlement to service connection for a bladder disorder, claimed as secondary to the service connected degenerative disc disease of the lumbar spine, in accordance with 38 C.F.R. § 19.29, unless that matter is resolved by granting the benefits sought, or by the veteran's withdrawal of his Notice of Disagreement. See 38 C.F.R. § 19.26; see also Manlincon, supra. If, and only if, a timely substantive appeal is received should that matter thereafter be returned to the Board for appellate review. See 38 U.S.C.A. § 7105(d) (West 1991); 38 C.F.R. §§ 20.200, 20.202, 20.302(b) (2007). 6. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate 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.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ RENÉE M. PELLETIER 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).