Citation Nr: 0809694 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 05-01 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to an increased disability rating for lumbosacral spondylosis with degenerative disc disease, status post discectomy, L4-L5, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The veteran served on active duty from December 1969 to November 1975, and from December 1975 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina (RO), which had continued and confirmed the 20 percent rating assigned for the veteran's service-connected low back disorder. For the reasons expressed below, the matter on appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further RO action is required in properly developing the veteran's claim for entitlement to an increased disability rating for lumbosacral spondylosis with degenerative disc disease, status post discectomy, L4-L5. Review of the record shows that, following an October 2006 VA examination by a nurse practitioner, that examiner provided an opinion in November 2006 based on the October 2006 examination, which is material to the veteran's claim on appeal. The examiner opined that the veteran's service- connected back disability did not cause his bilateral lower extremities peripheral neuropathy (polyneuropathy). That opinion is material to the veteran's claim because in evaluating the veteran's lumbosacral spondylosis with degenerative disc disease, status post discectomy, L4-L5, the Board must consider any associated chronic orthopedic manifestations, as well as associated neurologic manifestations. See 38 C.F.R. § 4.71a, Diagnostic Code 5393 (2002); see also 38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The record reflects that in conducting the October 2006 VA examination and making the November 2006 opinion, the examiner did not have the benefit of review of the claims folder, and the examiner also did not provide any rationale for the opinion. On review, it is pertinent to note that the claims folder contains some medical evidence which appears to run contrary to the examiner's November 2006 opinion. Had the nurse practitioner considered this evidence, it may have altered the opinion. Also, some of the prior medical records (predating the October 2006 VA examination) contain evidence indicating that the veteran manifests radiculopathy that is due to the service-connected low back disability. During a May 2003 VA examination, straight leg raising test was positive, with complaints of lower back pain radiating into the lower extremities. Soon after that, private treatment records in January 2004 show that the veteran was treated for complaints of radiculopathy to the left lower extremity. At that time he underwent a left L4/5 diskectomy. The associated records contain a diagnosis of left L4/5 disk herniation with consequent radiculopathy. The Board notes that a VA examiner conducted a subsequent VA examination in October 2004, also without benefit of review of the claims file. The absence of claims file review at the two most recent VA examinations is an important factor in the Board's determination that a remand is necessary. The Board must consider all manifestations including neurological, which are associated with the service-connected low back disability. To do so, the Board must determine whether any lower extremity neurological pathology is a manifestation of the service-connected low back disability. Such a determination (opinion) must be based medical evidence obtained from a thorough and contemporaneous medical examination, which takes into account the records of prior medical treatment, so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Therefore, a remand is necessary in order to arrange for the veteran to undergo examination and thereby obtain a pertinent opinion based on a review of prior medical records. Prior to any examination, the RO should attempt to obtain copies of any outstanding records of pertinent medical treatment. Accordingly, the case is REMANDED for the following action: 1. The RO should ask the appellant to identify all medical care providers who evaluated or treated him since October 2006 for his service-connected low back disability, including any claimed orthopedic and/or neurologic manifestations. The RO should appropriately proceed to request copies of any pertinent private or VA medical records not currently of record for that period from all sources identified. 2. After accomplishing the above and obtaining any available records, the RO should arrange for the appellant to undergo orthopedic and nerve examinations of the lumbosacral spine, which must be conducted by appropriate physician specialists, to determine the nature and severity of the veteran's service- connected lumbosacral spondylosis with degenerative disc disease, status post discectomy, L4-L5. All studies deemed appropriate in the medical opinion of the examiner should be performed; and, all findings should be set forth in detail. The examiners must review the claims folder in conjunction with the respective examinations, and this fact should be so indicated in the examination report. The rationale for any opinion expressed should be included in the respective examination reports. If the examiner determines that it is not feasible to respond to any of the inquiries below, the examiner should explain why it is not feasible to respond. The nerve examination should report all findings and note all associated symptoms, including those compatible with sciatic neuropathy, such as characteristic pain and demonstrable muscle spasm, absent ankle jerks, or other neurological findings appropriate to the site of the diseased disc or discs concerning the lumbosacral spine. The neurological examiner should specifically comment as to whether the veteran has incapacitating episodes associated with his service-connected low back disorder, and if so, the frequency of such incapacitating episodes. This must include a specific statement as to the total duration of any incapacitating episodes during the past 12 months for the spine disability. For purposes of evaluation, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome requiring bed rest prescribed by a physician, and treatment by a physician. The examiner should discuss the effect the veteran's lumbosacral spine disorder has upon his daily activities. The spine (orthopedic) examination should report all findings and note all associated symptoms. The orthopedic examiner should provide the range of motion of the spine in degrees. The examiner should note all symptoms such as pain, stiffness, or aching in the area of the spine affected by injury, as well as muscle spasm, guarding, or abnormal gait. The examiner should note the presence of objective evidence of pain, excess fatigability, incoordination, and weakness, and any additional disability due to these factors. The examiner should discuss, separately, the effects on the veteran's daily activities by his service- connected lumbosacral spondylosis with degenerative disc disease, status post discectomy, L4-L5. 3. Following any additional development deemed appropriate by the RO, the RO should readjudicate the claim for an increased rating for lumbosacral spondylosis with degenerative disc disease, status post discectomy, L4-L5. If the determination remains unfavorable to the appellant, he and his representative should be furnished a supplemental statement of the case and be afforded the applicable time period in which to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the appellant until further notice. However, the Board takes this opportunity to advise the appellant 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 his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655. (CONTINUED ON NEXT PAGE) 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. 2006). _________________________________________________ DENNIS F. CHIAPPETTA 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).