Citation Nr: 0812181 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-37 719 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to a disability evaluation in excess of 40 percent for discogenic disease of the lumbar spine. REPRESENTATION Appellant represented by: Dennis L. Peterson, Esq. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E.B. Joyner, Associate Counsel INTRODUCTION The veteran served on active duty from December 1967 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix. Arizona. In April 2007, a Travel Board hearing before the undersigned Veterans Law Judge was held. A transcript of that hearing is of record. When the case was before the Board August 2007, the Board denied the veteran's appeal for the issue on the title page. The veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In December 2007, the Court issued an order that granted a Joint Motion for Remand, and remanded the matter to the Board for action in compliance with the motion. 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 In order to accomplish the directives set forth in the Joint Motion for Remand, the Board is of the opinion that the veteran's claim should be remanded for further development. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Additionally, the claimant must be notified that, should an increase in disability be 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 noncompensable to as much as 100 percent (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. The notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., 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. Vazquez-Flores, 22 Vet. App. at 43-44. In the instant case, the veteran has not been provided sufficient notice under Vazquez-Flores. In letters dated in August 2001 and October 2004, the veteran was instructed to submit evidence showing that his back disability has increased in severity, but he has not been advised to submit medical or lay evidence demonstrating the effect that worsening has on his employment and daily life. Furthermore, the Board is of the opinion that in order to properly assess the severity of the veteran's service- connected back disability, a VA orthopedic and neurologic examination is warranted. Because the Board has determined that a medical examination is necessary in the instant case, the veteran is hereby informed that 38 C.F.R. § 3.326(a) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 provide that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination scheduled in conjunction with a claim for increase, the claim shall be denied. Relevant ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. The AMC or the RO should send the veteran a letter providing the notice required under 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007). The notice should also notify the veteran that, to substantiate a claim for a higher rating, he must provide, or ask the Secretary 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. The notice must also provide examples of the types of medical and lay evidence that he may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation- e.g., 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, as set forth in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. The AMC or the RO should then undertake appropriate development to obtain any other pertinent evidence identified but not provided by the veteran. If it is unable to obtain any such evidence, it should so inform the veteran and his representative and request them to provide the outstanding evidence. In any event, copies all VA and non-VA medical records dated from March 2007 to the present should be obtained and associated with the claims file. 3. Thereafter, the veteran should be scheduled for a VA orthopedic and neurologic examination for the purpose of determining the current severity of his service-connected discogenic disease of the lumbar spine. The claims file and a copy of this Remand must be made available to and reviewed by the examiner(s). The examiner should describe all symptomatology due to the veteran's service-connected discogenic disease of the lumbar spine. Any indicated studies, including an X-ray study and range of motion testing in degrees, should be performed. The examiner should note the exact measurements for forward flexion, extension, lateral flexion, lateral rotation and specifically identify any excursion of motion accompanied by pain. The examiner should identify any objective evidence of pain and provide an assessment of the degree of severity of any pain. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. To the extent possible, the examiner should assess the degree of severity of any pain. Tests of joint movement against varying resistance should be performed. The extent of any incoordination, weakened movement and excess fatigability on use should also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should specifically address whether there is localized tenderness, muscle spasm on extreme forward bending; loss of lateral spine motion, unilateral, in a standing position; listing of the whole spine to the opposite side or other abnormality of spinal contour; positive Goldthwaite's sign; abnormal mobility on forced motion, and/or guarding. If guarding or muscle spasm is found, the examiner should indicate whether it is sufficiently severe to result in an abnormal gait. If the lumbosacral spine is ankylosed, the examiner should identify the angle of ankylosis, provide an opinion as to whether it is at a favorable or unfavorable angle, and indicate whether it results in difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial subluxation or dislocation, or neurologic symptoms due to nerve root stretching. The examiner should specifically identify any evidence of neuropathy due to the service-connected discogenic disease of the lumbar spine, to include reflex changes, characteristic pain, and muscle spasm. Any functional impairment of the lower extremities due to the disc disease should be identified, and the examiner should assess the frequency and duration of any episodes of intervertebral disc syndrome, and in particular should assess the frequency and duration of any episodes of acute signs and symptoms of intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician. The examiner should also provide an opinion concerning the impact of the veteran's service-connected back disability on his ability to work, to include whether it renders him unemployable. The rationale for all opinions expressed should also be provided. 4. In the event that the veteran does not report for any ordered examination, documentation should be obtained which shows that the notice scheduling the examination was sent to the last known address prior to the date of the examination. 5. The AMC or the RO should also undertake any other development it determines to be warranted. 6. Then, the AMC or the RO should readjudicate the issue on appeal based on a de novo review of the record. If the benefit sought on appeal is not granted to the veteran's satisfaction, the veteran and his representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified, but he has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. See 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). _________________________________________________ WAYNE M. BRAEUER 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).