Citation Nr: 0814633 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-29 495 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an increased rating for a lumbar spine disability, currently rated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Simone C. Krembs, Associate Counsel INTRODUCTION The veteran served on active duty from August 1955 to July 1959. This matter comes before the Board of Veterans' Appeals (Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona that denied the veteran's claim of entitlement to a disability rating in excess of 40 percent for his lumbar spine disability. In September 2007, the veteran relocated to Reno, Nevada. Jurisdiction of his claim was subsequently transferred to the Reno, Nevada RO. In March 2008, the veteran testified before the Board at a hearing that was held at the RO in Reno, Nevada. At his March 2008 hearing, the veteran raised a new claim of entitlement to service connection for a cervical spine disability. The Board refers this claim to the RO for appropriate action. At the hearing, the undersigned Veterans Law Judge advanced the appeal on the docket. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND In March 2008 testimony before the Board, the veteran stated that he was scheduled for an MRI examination of his spine in April 2008. As the associated report of examination is relevant to the veteran's claim, and has not yet been associated with the record, the Board finds that a remand is necessary in order to obtain the report of examination. 38 C.F.R. § 3.159(c)(2) (2007); Bell v. Derwinski, 2 Vet. App. 611 (1992). The veteran also testified that he receives ongoing VA treatment for his service-connected back disability. The veteran should be given an opportunity to submit and/or identify all recent treatment for the back. In this regard, the veteran should be informed that the last treatment concerning the back which is of record is dated in January 2008. During the March 2008 Travel Board hearing, the veteran testified to having incapacitating episodes of intervertebral disc syndrome. The evidence of record does not clearly address this. Therefore, the veteran should be scheduled for a VA examination. The Board also finds that proper notice under Vazquez-Flores v. Peak, 22 Vet. App. 37 (2008) should be provided. Accordingly, the case is REMANDED for the following actions: 1. Provide the veteran with VCAA notice that is compliant with the requirements of Vazquez-Flores v. Peak, 22 Vet. App. 37 (2008). Specifically, the notice should advise the veteran that to substantiate his claim of entitlement to a rating in excess of 40 percent for his lumbar spine disability, he must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase severity of the disability and the effect that worsening has on his employment and daily life. The veteran should also be afforded a copy of the applicable criteria needed for increased (higher) ratings under the applicable Diagnostic Codes for rating the lumbar spine disability, including 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 and 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620 and 8720 (2007). Also advise the veteran 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 percent 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. In addition, provide examples of the types of medical and lay evidence that the veteran 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. 2. Obtain and associate with the claims file records from the VA facility in Reno, Nevada dated from January 2008 to the present. Attempts should also be made to obtain a report of an MRI examination of the spine conducted in April 2008. If any records cannot be obtained, the veteran should be given notice of that fact. 3. Arrange for the veteran to undergo VA orthopedic and neurological examinations for the purpose of ascertaining the current nature and severity of his service-connected back disorder. The claims file must be made available to the examiner for review. The examiner is asked to address the following: a) Provide the range of motion of the lumbar spine (extension, forward flexion, left and right lateral flexion and left and right rotation), expressed in degrees. b) Determine whether the back exhibits weakened movement, excess fatigability, or incoordination attributable to the service connected back disorder and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. Finally, the examiner should express an opinion on whether pain could significantly limit functional ability during flare-ups or when the back is used repeatedly over a period of time. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. c) Identify any associated neurological deformities associated with the service- connected back disorder. The severity of each neurological sign and symptom should be reported. d) The examiner should specifically state whether the veteran's service-connected back disorder causes any paralysis of the sciatic nerve or any other nerve. If so, the examiner should state whether such paralysis is complete or incomplete. If incomplete, the examiner should state whether it is mild, moderate, moderately severe or severe with marked muscular atrophy. If complete paralysis is found, the examiner should identify the objective findings which indicate complete paralysis of the sciatic nerve or any other nerve. e) State whether the veteran has intervertebral disc syndrome which results in incapacitating episodes, and if so, the duration of the episodes over the past 12 months should be reported. The examiner should note that for VA purposes an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The examiners must set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record. The veteran is hereby advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 4. Then, readjudicate the veteran's claim of entitlement to a rating in excess of 40 percent for a lumbar spine disability. If any action remains adverse to the veteran, issue a supplemental statement of the case and allow an appropriate opportunity for response. Thereafter, return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board is remanding. 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). _________________________________________________ K. OSBORNE 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).