Citation Nr: 0813506 Decision Date: 04/24/08 Archive Date: 05/01/08 DOCKET NO. 05-21 386 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 20 percent for myositis of the lumbosacral paravertebral muscles. 2. Entitlement to service connection for disc disorder and lumbar radiculopathy, claimed as secondary to service- connected myositis of the lumbosacral paravertebral muscles. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. A. Rein, Associate Counsel INTRODUCTION The veteran had active military service from May 1973 to May 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2004 and October 2005 rating decisions. In the July 2004 rating decision, the RO denied service connection for lumbar radiculopathy, discogenic disease L5- S1, as secondary to service-connected mysotitis of the lumbar spine. The veteran filed a notice of disagreement (NOD) in April 2005, and the RO issued a statement of the case (SOC) in June 2005. The veteran filed a substantive appeal (via a VA Form 9) in July 2005. In the October 2005 rating decision, the RO continued a 20 percent disability rating for service-connected myositis of the lumbosacral paravertebral muscles. The veteran filed an NOD in December 2005, and the RO issued) in February 2006. The veteran filed a substantive appeal (via a VA Form 9, Appeal to Board of Veterans' Appeals) in February 2006. In June 2006, the veteran testified during a hearing before RO personnel: a transcript of that hearing is associated with the claims file. In March 2007, the RO issued a supplemental SOC (SSOC) reflecting the continued denial of the claims following a review of the entire evidence of record. In February 2008, the veteran testified during a hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. During the hearing, the veteran submitted to the Board additional evidence for consideration in connection with the claims on appeal, along with a waiver of RO jurisdiction of such evidence. The Board accepts this evidence for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2007). The Board also notes that, in February 2008, the veteran revoked his power-of-attorney with the Vietnam Veterans of America in favor of Veterans of Foreign Wars of the United States. In February 2008, the veteran executed a new power- of- attorney (VA Form 21-22), designating the Veterans of Foreign Wars of the United States as his representative. The Board recognizes the change in representation. For the reasons expressed below, these matters are being remanded to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify the veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that additional RO action on the matters on appeal is warranted. Regarding the claim for an increased rating, during the February 2008 Board hearing, the veteran asserted that his service-connected myositis of the lumbosacral paravertebral muscles had worsened, noting that he now must use a device to assist with ambulation. In addition, the veteran stated that he receives medication from the VA Medical Center (VAMC) in San Juan, Puerto Rico, for chronic low back pain. Additional VA outpatient records since the veteran's June 2005 VA examination also reflects that the veteran received physical therapy for complaints of low back pain. Therefore, to ensure that the record reflects the current severity of the veteran's service-connected myositis of the lumbosacral paravertebral muscles disability, the Board finds that a more contemporaneous examination, with findings responsive to the applicable rating criteria, is needed to properly evaluate the service-connected myositis of the lumbosacral paravertebral muscles. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous). The examination should include a review of the veteran's claims file and past clinical history, with particular attention to the severity of present symptomatology, as well as any significant pertinent medical history since his June 2005 examination. See also 38 C.F.R. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). As regards the claim for service connection for a lumbar spine disability, the Board notes that, under 38 C.F.R. § 3.310(a), service connection may be granted for disability that is proximately due to or the result of a service- connected disease or injury. That regulation permits service connection not only for disability caused by service- connected disability, but for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See 38 C.F.R. § 3.310 (2007). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). During the February 2008 Board hearing, the veteran's representative asserted that the veteran's low back disability that was service-connected in the September 1980 RO decision was not properly characterized (p. 6) based on medical findings at that time and thereafter. In this regard, a February 1980 lumbosacral spine radiology report showed mild bony demineralization and a small spina bifida occulta at S-1 level. A May 1989 Department of Labor record reflects that the veteran was diagnosed with lumbar strain due to lifting a 67 pound pail of paint at work. A June 2003 radiology report indicated findings of minimal lumbar dextroscoliosis with the apex at the level of L3 and straightening of the normal lordosis. The radiologist commented that these changes were consistent with lumbar strain and lumbar muscle spasms. A July 2003 CT of the lumbosacral spine showed the presence of a herniated disc at L5-S1. A February 2004 electromyographic and nerve conduction velocity examination report revealed a diagnosis of bilateral S1 radiulopathy. The Board notes that a May 2004 VA examiner opined that the veteran's lumbar radiculopathy and discogenic disease was not at least as likely as not secondary to service-connected lumbar myositis; however, the examiner did not address whether there was a relationship based on aggravation pursuant to 38 C.F.R. § 3.310. In addition, on VA examination in June 2005, the examiner noted that he was requested to comment whether the etiology for any of the veteran's subjective complaints were unrelated to the claimed disability. The examiner noted that the veteran complained of low back pain since 1976, but did not indicate that he reviewed the claims file; the diagnoses were lumbosacal strain - myositis, and bulging disc at lumbosacral spine at several segmental levels. However, the examiner failed to provide the requested nexus opinion. Furthermore, in a December 2005 private medical report, L. N. Olmedo, M.D., opined, based on the veteran's reported history and consideration of some of the veteran's medical records, that the veteran's compensable lower back pain with decreased range of motion, bilateral L5-S1 radiculopathy, and lower extremity weakness are secondary to his back trauma in 1976. Given the veteran's assertions and those made by his representative, on his behalf, and, in light of the medical evidence noted above, the Board finds that further VA examination to obtain a medical opinion is needed to resolve the claim for secondary service connection. See 38 U.S.C.A. § 5103A(d)(2) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In addition, as the aforementioned makes clear, the current record does not include sufficient medical information to resolve the questions regarding the current severity of the veteran's service-connected myositis of the lumbosacral paravertebral muscles. Accordingly, the RO should arrange for the veteran to undergo VA examination, by an appropriate physician, at a VA medical facility. The veteran is hereby advised that failure to report for the scheduled VA examination, without good cause, shall result in denial of the claim for an increase. See 38 C.F.R. § 3.655 (2007). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. If the veteran does not report for the scheduled examination, the RO must obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the veteran to undergo further examination, the RO should obtain and associate with the claims file all outstanding VA medical records. The claims file currently includes outpatient treatment records from the VAMC in San Juan dated from March 1981 to January 2007. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Hence, the RO must obtain all outstanding pertinent treatment records since January 2007 from the San Juan VAMC, following the current procedures prescribed in 38 C.F.R. § 3.159 (2007) as regards requests for records from Federal facilities. The Board also notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2007)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA have been codified, as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007). The claims file reveals that additional RO action is needed to comply with the notification requirements of the VCAA. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board further notes that in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the United States Court of Appeals for Veterans Claims (Court) found that, at a minimum, adequate VCAA notice requires that VA notify the claimant that, to substantiate such a claim: (1) the claimant 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 the claimant's employment and daily life; (2) if the diagnostic code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes; and (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation The Board emphasizes that action by the RO is required to satisfy the notification provisions of the VCAA. See Disabled American Veterans v. Secretary of Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003). Hence, the RO should, through VCAA-compliant notice, give the veteran another opportunity to provide information and/or evidence pertinent to the claims on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103 (b)(1)(West 2002); but see also 38 U.S.C.A. § 5103(b)(3)) (West Supp. 2007) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The RO should also invite the appellant to submit all pertinent evidence in his possession, and ensure that its notice to the veteran meets the requirements of the decisions in Vasquez-Flores (cited to above), as appropriate, as well as Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006) (as regards the five elements of a claim for service connection-particularly, disability ratings and effective date), as appropriate, and Allen (cited to above). After providing the appropriate notice, the RO should obtain any additional evidence for which the veteran provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2007). The actions identified herein are consistent with the duties imposed by the VCAA. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2007). However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure that the VCAA has fully been complied with. Hence, in addition to the action requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claims on appeal. In adjudicating the increased rating claim on appeal, the RO must document its specific consideration of whether "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) pursuant to Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007), is appropriate. Accordingly, these matters are hereby REMANDED to the RO, via the AMC, for the following actions: 1. The RO should obtain from the San Juan VAMC all outstanding records of evaluation and/or treatment pertaining to his low back, to include all diagnostic reports from January 2007 to the present. The RO must follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. The RO should furnish to the veteran and his representative a VCAA-compliant notice letter requesting that the veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to each of the claims on appeal that is not currently of record. The RO should specifically request that he provide sufficient information and authorization to obtain all medical records from private doctors who provided treatment for his low back, as indicated by the veteran's February 2008 testimony before the undersigned. The RO should request that the veteran submit all evidence in his possession relating to each of the claims on appeal, and explain the type of evidence that is his ultimate responsibility to submit. The RO should also ensure that its letter meets the notice requirements of Dingess/Hartman and Vazquez-Flores (cited to above). The notice letter must also inform the veteran as to the evidence need to support his claim for a lumbar spine disability (characterized as disc disorder and lumbar radiculopathy), as secondary to service-connected myositis of the lumbosacral paravertebral muscles, under the provisions of 38 C.F.R. § 3.310 (revised effective in October 2006). The RO's letter should clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claims within the one-year period). 3. If the veteran responds, the RO should assist the veteran in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, the RO should notify the veteran and his representative that the records were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all available records and/or responses from each contacted entity are associated with the claims file, or, the time period for the veteran's response has expired, the RO should arrange for the veteran to undergo a VA examination, by an appropriate physician, at a VA medical facility. The entire claims file, to include a complete copy of this REMAND, must be provided to the examiner designated to examine the veteran, and the examination report should reflect consideration of the veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting physician prior to the completion of his r her report) and all clinical findings should be reported in detail. The physician should conduct range of motion testing of the lumbosacral spine, expressed in degrees. The physician should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the low back. If pain on motion is observed, the physician should indicate the point at which pain begins. In addition, the physician should indicate whether, and to what extent, the veteran experiences likely functional loss of the lumbosacral spine due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also provide an assessment of the severity of the disability, and comment upon the impact of the disability on employment. The physician should also clearly identify all additional lower back disability(ies) affecting the lumbosacral spine. With respect to each diagnosed disability, the physician should offer an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disability (a) was caused, or (b) is aggravated by the veteran's service- connected myositis of the lumbosacral paravertebral muscles. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation, consistent with 38 C.F.R. § 3.310(a) (as revised effective in October 2006). If a lumbar spine disability (characterized as disc disorder and lumbar radiculopathy) is not found to be etiologically related to the lumbar myositis disability, it is essential that the examiner distinguish, to the extent possible, the symptoms due to the veteran's service-connected lumbar myositis from those due to non service- connected lumbar spine disabilities. If it is not medically possible to do so, the examiner should clearly so state. The examiner should set forth all examination findings, along with the complete rationale for the conclusions reached, in a printed (typewritten) report. 5. If the veteran fails to report to any scheduled examination, the RO must obtain and associate with the claims file copy(ies) of any notice(s) of the date and time of the examination sent to the veteran by the pertinent facility. 6. To help avoid future remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate each of the claims on appeal. If the veteran fails to report to the examination scheduled in connection with the claim for increase, the RO should apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, the RO should consider each claim in light of all pertinent evidence (to include that submitted directly to the Board in February 2008) and legal authority. To the extent that adjudication of the claim(s) on the merits is warranted, the RO should specifically document its consideration of whether "staged rating" of the myositis of the lumbosacral spine disability, pursuant to Hart (cited to above), is appropriate, as well as the current version of 38 C.F.R. § 3.310, as revised effective in October 2006, and Allen (cited to above) in connection with the claim for secondary service connection. 8. If any benefit sought on appeal remains denied, the RO must furnish to the veteran and his representative an appropriate SSOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process; it is not the Board's intent to imply whether the benefits requested should be granted or denied. The veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). These claims must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2007).