Citation Nr: 0812960 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 07-23 083 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee ISSUES 1. Entitlement to a rating in excess of 10 percent for lumbar back pain syndrome, prior to May 11, 2001, in excess of 20 percent from May 11, 2001 to March 1, 2004, and in excess of 40 percent from March 2, 2004. 2. Entitlement to a rating in excess of 10 percent for a duodenal ulcer, prior to May 11, 2001, and in excess of 20 percent from May 11, 2001. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD P. Childers, Associate Counsel REMAND The veteran had active military service from April 1994 to May 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2000 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied the veteran's request for a rating in excess of 10 percent for his service-connected back disability, and his request for a rating in excess of 10 percent for his service-connected duodenal ulcer disability. Review of the record reveals that in January 2001 the veteran filed a notice of disagreement with regard to the December 2000 rating decision. In his notice of disagreement the veteran advised that he had moved from Kentucky to Tennessee. Jurisdiction was permanently transferred from the Louisville, Kentucky RO to the Nashville, Tennessee RO in March 2001. In correspondence received by the RO in May 2001 the veteran stated that he wished "to file for an upgrade in disability compensation" of his service-connected duodenal ulcer and "extreme lower back pain." The appeal of the December 2000 decision was still pending. In a rating decision dated in December 2001 the RO increased the rating for the veteran's service-connected back disability from 10 percent to 20 percent effective May 11, 2001. The RO also increased the rating for the veteran's service-connected duodenal ulcer disability from 10 percent to 20 percent effective May 11, 2001. Although the ratings for the veteran's service-connected duodenal ulcer and back disabilities were increased, neither action reflected a complete grant. The veteran should therefore have been provided with a statement of the case after the December 2001 rating decision was issued. In September 2002 the veteran filed another claim for an "upgrade in disability compensation" for his service- connected disabilities. In March 2003 the RO issued a rating decision continuing the 20 percent evaluation for the veteran's service-connected back disability. In April 2003 the veteran submitted a request for reconsideration, and in May 2003 the RO sent the veteran a letter advising him that all service-connected disabilities would be considered for increased rating. In June 2003 the RO issued a rating decision continuing the 20 percent rating for the veteran's back disability, and the 20 percent rating for his duodenal ulcer disability. In February 2004 the veteran submitted correspondence requesting that he "be upgraded." In March 2004 he clarified that his claim was for an increased rating for his back disability. In a rating decision dated in June 2004 the RO increased the rating for the veteran's service-connected back disability from 20 percent to 40 percent effective March 2, 2004. In September 2005 the veteran submitted a new claim for an increased rating for his service-connected back and duodenal disabilities. In January 2006 the RO issued a rating decision continuing the 40 percent rating for the veteran's back disability, and the 20 percent rating for his duodenal ulcer disability. In July 2007 the RO issued a statement of the case regarding a rating in excess of 40 percent for low back pain syndrome, and a rating in excess of 20 percent for duodenal ulcer. In January 2008 the veteran appeared at the Nashville RO and testified by videoconference before the undersigned Veterans Law Judge sitting in Washington, D.C. The transcript of that hearing is of record. Preliminarily, the Board notes that since a complete grant of benefits for either claim has not been awarded, the January 2001 appeal of the December 2000 rating decision is still pending. This means that the effective date(s) of the December 2001 rating increases may be in error. On remand the RO should consider whether an earlier effective date for the 20 percent rating for the veteran's service-connected back disability is warranted, and whether an earlier effective date for 20 percent rating for the veteran's service-connected duodenal ulcer disability is warranted. 38 C.F.R. § 3.400. With regard to the veteran's appeal for a rating in excess of 40 percent for his service-connected back disability, the veteran says that his back pain is often so severe that he is restricted to his bed for hours. VA medical records document persistent complaints of and treatment for chronic low back pain "radiating to the left leg and foot." In December 2005 the veteran was accorded a compensation and pension (C&P) examination. During the examination he reported that he was unable to stay in one position or lift anything at all. He also reported that he has occasionally fallen at work due to his back pain and muscle spasms. Physical examination found range of motion of 0/25 degrees extension, 0/40 degrees flexion, lateral bending of 0/28 degrees bilaterally, and bilateral rotation of 0/45 degrees. The examiner also noted that the veteran "walks fairly normally without aids of any kind. Other findings were as follows: o slight straightening of the normal lumbar lordotic curvature of the spine; o moderate paravertebral muscle spasm on the right; [and] o mild weakness of the muscles in the lower extremities "of about 4/5 and [sic] hypoesthesias to light touch and sharp dull discrimination, especially in the medial foot and great toe During his January 2008 Board hearing the veteran complained of pain, tingling, and numbness in his lower extremities, and insisted that his symptoms have worsened since the December 2005 C&P examination. The Board finds no reason to doubt the veracity of the veteran's assertions, particularly in light of recent VA treatment records that chronicle the veteran's complaints of lower extremity symptomatology. Therefore, in order to properly evaluate the veteran's service-connected back disability, and in accordance with 38 C.F.R. § 3.327, this matter must be remanded for a new C&P examination. Regarding the appeal for a rating in excess of 20 percent for the veteran's service-connected duodenal ulcer disability, VA medical records reflect a history of chronic gastrointestinal disorder complaints, including nausea with vomiting and weight loss. In addition, an esophagogastroduodeno-scopy done in June 2005 confirms the presence of a hiatal hernia, which the veteran believes may be related to his duodenal ulcer. In the report of the December 2005 C&P examination the examiner remarked that the veteran was "pale looking," and noted that the veteran had had a 30 pound weight loss. However, the examiner did not aver as to whether the veteran had/has anemia. In order to properly evaluate the veteran's service-connected duodenal ulcer disability, remand in accordance with 38 C.F.R. § 3.327 is warranted. In addition to the foregoing, it is noted that the veteran receives medical care through the Mountain Home, Tennessee Veterans' Affairs Medical Center (VAMC). On remand a request should be made for all VA medical records dating from May 5, 2007, to the present. Bell v. Derwinski, 2 Vet. App. 611 (1992); 38 C.F.R. § 3.159(c)(2). Notice which informs the veteran of all potentially applicable rating criteria for his service-connected back and gastrointestinal disabilities (including the schedular criteria for evaluation of intervertebral disc syndrome) should also be provided. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Accordingly, the case is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC., for the following action: 1. Send a letter to the veteran that informs him of all potentially applicable diagnostic criteria with regard to his claim for an increased rating for his lumbar back pain syndrome disability (including, but not limited to, Diagnostic Codes 5293, 5285, 5286, 5289, 5292, 5295 (as in effect prior to September 26, 2003); Diagnostic Codes 5235-5243 (effective September 26, 2003); and Diagnostic Codes 8520, 8620 and 8720); and with regard to his claim for an increased rating for his duodenal ulcer disability, including, but not limited to, Diagnostic Codes 7305 and 7346. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). 2. Request medical records from the Mountain Home VAMC dating from May 5, 2007. Also attempt to obtain any other evidence that is identified as relevant by the veteran during the course of the remand, provided that any necessary authorization forms are completed. If no further treatment records exist, the claims file should be documented accordingly. 3. Schedule the veteran for an examination by an appropriate specialist with regard to his claim for an increased rating for his service-connected back disability. The claims file must be made available to, and reviewed by, the examiner, and the examination report must reflect that the claims file was reviewed. All indicated tests (including x-rays) must be performed, and all findings reported in detail. The examiner should specifically state whether ankylosis is present. The examiner is also specifically requested to state whether the veteran's service- connected back disability has resulted in any neurological involvement of the lower extremities and, if so, to identify the nature and location of any neurological manifestations that are attributable to the veteran's service-connected back disability. 4. Schedule the veteran for an examination by an appropriate specialist with regard to his claim for an increased rating for his service-connected duodenal ulcer disability. The claims file must be made available to, and reviewed by, the examiner, and the examination report must reflect that the claims file was reviewed. All indicated tests must be performed, and all findings reported in detail. The examiner should set out all symptoms related to the duodenal ulcer and opine as to severity (i.e., whether symptoms are mild, moderate, moderately severe, severe). If symptoms of the duodenal ulcer cannot be disassociated from symptoms attributable to co-existing disorders that are not related to the service-connected disability, the examiner should so state and explain why. The examiner is specifically requested to respond as follows: o state whether the veteran has anemia. o state whether the veteran has a hiatal hernia that was caused by or is aggravated by his service-connected duodenal ulcer. 5. After any further development deemed necessary, readjudicate the issues on appeal, INCLUDING THE PROPRIETY OF THE EFFECTIVE DATE FOR THE DECEMBER 2001 RATING INCREASES FROM 10 PERCENT TO 20 PERCENT. If any benefit sought remains denied, the veteran and his representative should be furnished a supplemental statement of the case in accordance with 38 C.F.R. § 19.31(b)(1) and be given an opportunity to respond. The case should then be returned to the Board for appellate review, if indicated. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ S. S. TOTH 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).