Citation Nr: 0809762 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 00-24 156A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for post-service back injuries, status post surgical repair. 2. Entitlement to a rating in excess of 40 percent for lumbar disc disease with spinal stenosis. 3. Entitlement to a temporary total rating for convalescence following surgery performed on June 18, 2000, under the provisions of 38 C.F.R. § 4.30, for a ruptured disk, L4-5, on the right. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from August 1986 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) by the United States Court of Appeals for Veterans Claims (hereinafter "the Court") on December 3, 2002, which granted a joint motion to vacate a June 2002 Board decision. The issue initially arose from an October 2000 rating decision by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded for additional development in July 2003 and December 2005. The Board notes that an August 2007 rating decision code sheet indicates service connection was established for a major depressive episode associated with lumbar disc disease and spinal stenosis and that a total rating based upon individual unemployability was granted effective from October 31, 2005. A copy of the rating decision documenting these actions is not of record. This matter is referred to the RO for appropriate action to protect the record. In correspondence dated in November 2007 the veteran submitted a timely notice of disagreement from an August 2007 rating decision denying entitlement to service connection for post-service back injuries, status post surgical repair. The Court has held that where the Board finds a notice of disagreement has been submitted regarding a matter which has not been addressed in a statement of the case, the issue should be remanded for appropriate action. Manlincon v. West, 12 Vet. App. 238 (1999). Therefore, the issue of entitlement to service connection for post-service back injuries, status post surgical repair, must be remanded. 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 increased rating and temporary total rating claims in January 2004, January 2006, and June 2006. During the pendency of this appeal, 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. The June 2006 notice provided in this case also addressed these matters. The Board finds that as this case must be remanded for additional development any remedial notice required as a 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). In this case, a March 1991 service department medical board report noted diagnoses of multiple ruptured disc and spinal stenosis. The report also noted a June 1990 magnetic resonance imaging (MRI) scan revealed congenital narrowing of the spinal canal with definite disc protrusion at L3-4, L4-5, and L5-S1 and some degeneration of of the L4-5 disc. VA examination in June 1992 noted MRI findings could represent a congenital stenosis and prolapse of the discs without neurologic deficit. A June 1993 private medical report noted a January 1991 MRI revealed multi-level stenosis that appeared to be congenital in nature, with no present neurologic deficits. An August 1994 VA examination report included a diagnosis of musculoskeletal low back strain with weak evidence of right leg radiculopathy. Private medical records show the veteran incurred a job- related back injury on January 31, 2000, while pulling sheet rock. A May 2000 consultation by G.H.K., M.D., included diagnoses of lumbar disc disease and lumbar radiculopathy. Hospital records show that in June 2000 the veteran underwent a unilateral lumbar laminectomy for a ruptured L4-5 disc on the right. In correspondence dated in January 2001 Dr. G.H.K. stated, in essence, that the disc involved in the operation was the only disc related to the veteran's occupational injury in January 2000 and that all other disc impairments were unrelated to that injury. VA examination in February 2004 included a diagnosis of intervertebral disc disease. The examiner noted there was evidence of chronic sciatica with hypesthesia in the left lower extremity and reported weakness. VA examaintions in February 2006 and September 2006 noted there was significant evidence of symptom exaggeration and no evidence of any neurological abnormalities. The examiner stated that all of the veteran's symptoms were due, in part, to his service- connected injury and were worsened by his post-service occupational injury. It was also noted that an assignment of a percentage for causal attribution of the present symptoms would be mere speculation. As the medical evidence of record includes conflicting and inconsistent findings and opinions as to etiology concerning the veteran's present back symptomatology, the Board finds additional development is required prior to appellate review. As a statement of the case has not been issued from the veteran's disagreement with the August 2007 rating decision denying entitlement to service connection for post-service back injuries, status post surgical repair, the Board finds additional development is required. Manlincon, 12 Vet. App. 238. Accordingly, the case is REMANDED for the following: 1. The veteran should be provided a statement of the case on the issue of entitlement to service connection for post-service back injuries, status post surgical repair. He should be apprised that to perfect the appeal on this issue for Board review he must submit a substantive appeal. The requisite period of time for a response should be allowed. 2. 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 increased rating 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). 3. The veteran should be scheduled for a VA neurology examination, by an appropriate physician specialist, for an opinion as to the extent and nature of his service-connected back disability. The physician should identify the degree to which, if any, the disorder is manifest by objective neurologic abnormalities and whether any such abnormalities may be attributed to the service-connected back disorder as opposed to an intercurrent work injury to the L4-5 disc. All necessary tests and studies should be conducted, to include electromyography (EMG) or nerve conduction studies. 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. 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. 5. 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).