Citation Nr: 1001802 Decision Date: 01/12/10 Archive Date: 01/22/10 DOCKET NO. 06-05 386 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 40 percent for chronic lumbar strain. 2. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity prior to January 26, 2009, and in excess of 20 percent thereafter. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran had active military service from September 1976 to October 1979, and from December 1990 to May 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by the Department of Veterans' Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania. In August 2009, the Veteran testified during a hearing at the RO before the undersigned. A transcript of that hearing is in the record. During the August 2009 hearing, the Veteran's representative raised a claim of entitlement to service connection for depression as secondary to the Veteran's service-connected disabilities. This matter is referred to the RO for appropriate development and adjudication. Following the hearing, the Veteran submitted additional evidence in support of his claim and waived the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304(c) (2009). 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 Veteran's service-connected lumbar spine disability and left leg radiculopathy were last examined by VA in conjunction with his claims for increased ratings in January 2009. But, during his August 2009 hearing, the Veteran testified that his chronic lumbar strain and left leg radiculopathy worsened since the January 2009 VA examination. The Veteran also noted that there were inconsistencies between the severity of his disabilities and the findings reported by the VA examiner in 2009. The Veteran specifically stated that he had constant low back pain, as opposed to a few times a week. He indicated that his back would "lock up" at times, and that the range of motion of the lumbar spine was more restricted than what was noted by the VA examiner. Additionally, while the VA examiner reported "no braces," the Veteran asserted that he used a back brace. The Veteran also testified that his left foot was numb and his leg would often give way and cause him to fall. He related muscle loss in the left leg, along with shrinking of the left lower extremity. The Board finds that, in the interest of due process and fairness, the Veteran should be afforded a new VA examination to determine the current severity and all manifestations of his service-connected chronic lumbar strain and left leg radiculopathy. VA is obliged to afford a Veteran a contemporaneous examination where there is evidence of an increase in the severity of the disability. VAOPGCPREC 11-95 (1995). The Veteran is competent to provide an opinion that his disability has worsened. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Furthermore, the Veteran testified that, in addition to receiving medical treatment for the service-connected disabilities at the Wilmington, Delaware, VA medical center (VAMC), he was also treated by D.A.S., D.O. In a June 2009 signed statement, Dr. D.A.S. reported treating the Veteran since September 2008 for low back and left lower extremity pain. Accordingly, there is additional non-VA medical evidence that has not been associated with the claims files and should be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain all medical records regarding the Veteran's treatment at the VAMC in Wilmington, Delaware, for the period from January 2009 to the present, and all medical records regarding his treatment by D.A.S., D.O., 1440 Conchester Highway, Suite 4, Boothwyn, PA, 19061-2193. 2. Then, the Veteran should be scheduled for appropriate VA examinations, performed by an orthopedist and a neurologist who have not previously examined the Veteran (if available), to set out orthopedic and neurologic findings and to detail the current severity and all manifestations of his service-connected chronic lumbar strain and left leg radiculopathy. All indicated tests and studies should be performed and all clinical findings reported in detail, including all orthopedic and neurologic residuals found to result from these disabilities. In particular, the examiner(s) should address the following: a). Lumbar Strain: The examiner(s) must indicate address the degree of incapacitation due to back pathology, detail ranges of motion, and neurological findings, to include the nerves or nerve groups affected, and otherwise describe all pertinent findings and symptoms, including whether there is evidence of unfavorable ankylosis of the entire thoracolumbar spine. b). Left Lower Extremity: With regard to the service-connected left lower radiculopathy, the presence, or absence, of any marked muscular atrophy as well as the presence, or absence, of any moderate, moderately severe, or severe incomplete paralysis or complete paralysis of the Veteran's sciatic nerve should be reported. c) The examiner(s) should also provide an opinion concerning the impact of the back and left lower extremity disabilities on the Veteran's ability to work, if any. d) The rationale for all opinions expressed must also be provided. 4. Then, readjudicate the claims. If action remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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). _________________________________________________ D. J. DRUCKER Acting 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) (2009).