Citation Nr: 1036637 Decision Date: 09/28/10 Archive Date: 10/05/10 DOCKET NO. 06-35 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to an increased evaluation for degenerative disc disease, L3-4 and L4-5, with compression fracture of L4 vertebral body, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Poulson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1989 to September 1993. This matter is before the Board of Veterans' Appeals (Board) from a June 2005 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming, which denied an increased rating for the Veteran's back disability. The Veteran did not request a hearing on this matter. 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 Remand is required for compliance with VA's duty to assist the Veteran in substantiating his claim, and to ensure a complete and adequate record for rating purposes. Low Back Disability Rating In evaluating disability of the joints, functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202 (1995). The May 2005 VA examiner noted flexion to 65 degrees with pain starting at that point. Upon repetitive motion testing, flexion decreased down to 55 degrees. The examiner did not test for weakness, fatigability, or incoordination. The Veteran complained of increased pain and limitation with use of the joint, as well as weakness and instability. A remand is required to obtain an adequate VA examination of the low back. Neurologic Manifestations The VA compensation examination in May 2005 is also inadequate for rating purposes as that examination found noted the Veteran's complaints of pain radiating but failed to address the presence or absence of any neurological abnormalities. Under 38 C.F.R. § 4.71a, General Rating Formula for Disease and Injuries of the Spine Note (1), neurological abnormalities are to be rated separately under the appropriate diagnostic code. An April 2004 VA treatment record shows that the Veteran complained of acute and chronic low back pain with intermittent radiculopathy into his right gluteal and mid-thigh region. He denied any weakness or other sensory changes. He also complained of intermittent problems with urinary frequency, and reportedly had been placed on medication by a urologist for overactive bladder. He denied any bowel incontinence. A May 2004 VA treatment record shows that the Veteran complained of some urinary incontinence of 5-6 months' duration associated with an increase in back pain. The Veteran denied any numbness or tingling in the lower extremities. There was normal strength and sensation in both lower extremities, and no tenderness or spasms. The doctor diagnosed urinary incontinence due to bladder spasm. A March 2005 VA treatment record shows that the Veteran reported "a particularly bad flare-up." The pain "makes his leg feel like it is going to give out at times, and it also makes his right ankle feel like it is going to turn in." Straight leg raising was negative on both sides. There was normal range of motion. There was some pain with hip and knee flexed in downward pressure. The doctor wrote: "I think is more like sciatica, although he could have an L5-S1 nerve root impingement." The May 2005 VA examination report notes that the Veteran complained of pain radiating into both buttocks, the right foot, and the left knee at times. He reported that when the pain is severe, radiation of pain into the right foot may be accompanied by inversion of the foot and difficulty with dorsiflexion of the ankle. VA's duty to assist a claimant includes providing a medical examination or obtaining a medical opinion when necessary to decide the claim. 38 C.F.R. § 3.159(c)(4). Thus, because the medical evidence of record indicates that the Veteran may have neurologic manifestations related to his service-connected back disability, another VA examination should be provided to determine the nature and etiology of any current neurologic abnormalities the Veteran may have. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 3.159(c)(4). Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding VA treatment records from the VAMC Cheyenne, Wyoming, from May 2005 to the present. 2. Schedule the Veteran for a VA spine examination. The examiner should fully describe the current status of the Veteran's service-connected low back disability, to include observable manifestations of pain upon range of motion testing, and identification and description of any neurological manifestations or impairment associated with the low back disability. All indicated tests and studies should be performed. As to any neurologic abnormality identified, including neuropathy, radiculopathy, and/or bladder impairment, the examiner is to provide an opinion as to whether it is at least as likely as not secondary to, or is otherwise related to, the Veteran's service-connected low back disability. The claim folder must be made available to the examiner for review in conjunction with the examination. A detailed rationale for all medical opinions must be provided. 3. Thereafter, any additional development deemed appropriate should be accomplished. The claim should then be re-adjudicated. If the claim remains denied, issue a supplemental statement of the case (SSOC) containing notice of all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal, and allow an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. 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. 2010). _________________________________________________ RONALD W. SCHOLZ 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).