Citation Nr: 1104331 Decision Date: 02/03/11 Archive Date: 02/14/11 DOCKET NO. 05-06 964 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES Entitlement to a rating in excess of 40 percent prior to January 31, 2010, and in excess of 20 percent from February 1, 2010, forward, for a herniated disc at L4-5 with degenerative changes of the lumbar spine at L3-4, to include whether the reduction from 40 percent to 20 percent was proper. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Nicole Klassen, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to May 1977, from August 1987 to March 1995, from January 2003 to August 2003, and from January 2007 to April 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, dated in February 2004. In its February 2004 decision, the RO denied entitlement to a rating in excess of 40 percent for the Veteran's herniated disc at L4-5 with degenerative changes of the lumbar spine at L3-4. In a November 2009 decision, the RO reduced the Veteran's disability rating for a herniated disc at L4-5 with degenerative changes of the lumbar spine at L3-4 from 40 percent disabling to 20 percent disabling, effective February 1, 2010. As such, the issue on appeal is as stated on the cover page. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. For the reasons set forth below, the Board finds that additional development is required in this case. Specifically, on remand, further attempts should be made to obtain a complete copy of the Veteran's service, private, and VA treatment records, and the Veteran should be afforded new VA examination assessing the current nature, extent, and severity of his low back disability. A review of the record further reflects that the Veteran's service treatment records are incomplete. Specifically, the Board notes that the only service treatment records currently associated with the claims file from the Veteran's period of active duty from January 2003 to August 2003 are his January 2003 Soldier Readiness Processing forms, a July 2003 report of medical history, and a July 2003 retention examination report. Additionally, the only service treatment records on file from the Veteran's period of active duty from January 2007 to April 2008 are treatment records dated from May 2007 to January 2008, a March 2007 pre-deployment health assessment, a February 2008 post-deployment health assessment, and a March 2008 Active Duty Health Readiness Survey. Accordingly, because these records do not include any treatment records dated from January 2003 to August 2003, and because no entrance or separation examinations for either period of service are of record, these records still appear to be incomplete. As such, further efforts to obtain a complete copy of the Veteran's service treatment records, including clinical records, should be undertaken before the Board renders a decision in this case. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c)(2). Additionally, the Board finds that, on remand, the Veteran should also be afforded a new VA spine/neurological examination. The Board acknowledges that the Veteran was afforded VA spine examinations in November 2003, June 2006, August 2008, and October 2009, as well as a VA neurological examination in September 2008. Significantly, however, the November 2003, June 2006, August 2008, and October 2009 examiners all failed to indicate whether the Veteran's low back disability has resulted in any periods of incapacitation. In this regard, the Board notes that, at his November 2003 VA examination, the Veteran reported that he occasionally had to miss work as a result of his severe low back muscle spasms. Moreover, in a March 2005 letter, the Veteran's private doctor, Dr. Stephen W. Speeg, reported that the Veteran suffered from "incapacitating episodes" of back pain for at least six weeks a year, and stated that this would continue for the rest of the Veteran's life. Finally, in a September 2009 letter, the Veteran's supervisor at the United States Postal Office in Baton Rouge, Louisiana, stated that the Veteran had been absent from work for several weeks throughout the year as a result of his chronic low back pain, submitting copies of the Veteran's leave forms for 2008 and 2009, which showed numerous absences from work. Moreover, the June 2006, August 2008, and October 2009 VA examiners all failed to address the Veteran's contentions regarding peripheral neuropathy symptomatology in his arms and legs, and instead merely stated that, on examination, the Veteran had normal sensory testing. In this regard, the Board notes that, in November 2003, the VA examiner reported that the Veteran had intermittent numbness in his right thigh associated with his low back disability; in August 2008, a VA doctor diagnosed the Veteran with a neurological abnormality of the hands, noting the Veteran's reports of numbness in his fingers, hands, and toes, and severe cramping in his hands and right thigh; and in September 2008, the VA neurological examiner reported that the Veteran had symptoms of peripheral neuropathy in his arms and legs. Moreover, the Board notes that the Veteran is competent to report the symptoms of numbness and cramping in his arms and legs. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007) (holding that lay testimony is competent to establish the presence of observable symptomatology); Layno v. Brown, 6 Vet. App. 465 (1994) (holding that competent testimony is limited to that which the witness has actually observed and is within the realm of his personal knowledge; such knowledge comes to a witness through use of his senses-that which is heard, felt, seen, smelled or tasted); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). On this record, it appears that the November 2005, November 2006, and June 2009 VA examiners did not address all of the pertinent manifestations of the Veteran's low back disability in relation to the rating criteria. Further, in regard to the Veteran's peripheral neuropathy symptomatology, the Board acknowledges that the September 2008 VA neurological examiner provided the opinion that the Veteran's numbness and cramping in his arms and legs, which she stated could be signs of early peripheral neuropathy, were most likely caused by, or the result of, exposure to toxic chemicals in Kuwait. In providing this opinion, however, the examiner stated that her "assumption" as to the etiology of the Veteran's numbness and cramping was based on the fact that the Veteran denied any other major disorders known to cause peripheral neuropathy, such as diabetes, alcoholism, drug addiction, prolonged treatment with drugs that could cause neuropathy, and so on. Significantly, however, the examiner does not appear to have considered whether the Veteran's neurological symptomatology was in any way related to his service-connected herniated disc at L4-5 with degenerative changes of the lumbar spine at L3-4, and accordingly, her opinion seems to be based on a factually inaccurate history. Moreover, insofar as the examiner's opinion was based on a mere assumption, rather than a reasoned medical explanation with supporting data, the Board finds that this opinion is of little probative value. Accordingly, because the November 2003, June 2006, August 2008, and October 2009 VA examiners did not address all of the pertinent manifestations of the Veteran's low back disability, and because, to date, no VA examiner has provided an adequate opinion as to whether the Veteran's currently diagnosed symptoms of peripheral neuropathy are related to his low back disability, the Board finds these examination reports to be inadequate for rating purposes. See Massey v. Brown, 7 Vet. App. 204, 208 (1994) (holding that a VA examination must contain reference to the pertinent criteria to be adequate); Hayes v. Brown, 9 Vet. App. 67, 73 (1996) (holding that where a medical examination does not contain sufficient detail to decide the claim on appeal, the Board must return the report as inadequate for evaluation purposes); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two); Kowalski v. Nicholson, 19 Vet.App. 171, 179 (2005) (citing Reonal v. Brown, 5 Vet. App. 458, 461 (1993) and Swann v. Brown, 5 Vet.App. 229 (1993)) (stating that the Board is not bound to accept medical opinions that are based upon an inaccurate factual background). As such, this matter must be remanded in order to provide the Veteran with another examination and medical opinion assessing the current nature, extent, and severity of the Veteran's low back disability, and addressing all of the pertinent manifestations of the Veteran's low back disability in relation to the pertinent rating criteria, to specifically include a clear and reasoned determination as to whether the Veteran's current peripheral neuropathy symptomatology is in any way related to his service-connected herniated disc at L4-5 with degenerative changes of the lumbar spine at L3-4, is necessary to make a determination in this case. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (stating that once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided); see also 38 C.F.R. § 4.2 (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). Finally, as this case must be remanded for the foregoing reasons, on remand, all relevant private and VA treatment records should also be obtained. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In this regard, the Board notes that the Veteran has been undergoing fairly consistent treatment for his low back disorder from Dr. Speeg, and that an October 2009 letter from Dr. Speeg indicates that he has continued to receive such treatment; however, records from such treatment dated since June 2005 have not been associated with the claims file. Additionally, the record reflects that the most recent VA treatment records associated with the claims file are dated in September 2008. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment with respect to all private health care providers who have treated his low back disability, to specifically include treatment records from Dr. Stephen W. Speeg, dated since June 2005. Following the receipt of any necessary authorizations from the Veteran, attempt to obtain any medical records identified by the Veteran. If these records are not available, request that the doctors provide a negative reply. 2. Contact the National Personnel Records Center and/or any other indicated agency, and request copies of the Veteran's complete service personnel and treatment records, including any clinical records, from his periods of service from January 2003 to August 2003 and January 2007 to April 2008. The Board is particularly interested in any available periodical and/or separation examination reports, as well as any treatment and/or hospitalization for a low back disorder. If these records are not available, a negative reply must be provided. Additionally, if these records are unavailable, the Veteran should be notified in accordance with 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Obtain a complete copy of the Veteran's treatment records pertaining to his low back disability from the New Orleans, Louisiana, VA medical center, dated since September 2008. 4. After the foregoing development has been completed, schedule the Veteran for a VA spine examination to determine the nature, extent, and severity of his service-connected herniated disc at L4-5 with degenerative changes of the lumbar spine at L3-4. The claims folder should be made available to and reviewed by the examiner. All necessary tests, including x-rays if indicated, should be performed. The examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected herniated disc at L4-5 with degenerative changes of the lumbar spine at L3-4. The examiner should also identify any neurological pathology related to the service-connected lumbar spine disability (including the nerves involved, whether there is any complete or incomplete paralysis and if incomplete whether the paralysis is analogous to mild, moderate, moderately severe, or severe). In this regard, the examiner should specifically discuss the evidence of record regarding numbness in the Veteran's fingers, hands, and toes, as well as cramping in his hands and right leg. The examiner should also state whether the Veteran's service-connected herniated disc at L4-5 with degenerative changes of the lumbar spine at L3-4 causes intervertebral disc syndrome (IVDS), and if so, the examiner should document the number of weeks, if any, during the past 12 months, that the Veteran has had "incapacitating episodes," defined as 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. In doing so, the examiner should address the evidence of record regarding periods of work missed by the Veteran as a result of his low back disability. The examiner should also state whether the Veteran's IVDS, if present, is mild; moderate (i.e., with recurring attacks); severe (i.e., characterized by recurring attacks with intermittent relief); or pronounced (i.e., with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief). Additionally, the examiner should provide the ranges of motion of the Veteran's lumbar spine. In this regard, the examiner should state whether there is slight, moderate, or severe limitation of motion of the lumbar segment of the spine. The examiner should also note whether- upon repetitive motion of the Veteran's low back-there is any pain, weakened movement, excess fatigability, or incoordination on movement, and whether there is likely to be additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the lumbar spine is used repeatedly. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. The examiner should also specifically note the presence or absence of favorable or unfavorable ankylosis of the Veteran's entire thoracolumbar spine and of unfavorable ankylosis of his entire spine. Further, the examiner should indicate whether the Veteran has muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in the standing position. The examiner should also state whether the Veteran's low back disability is manifested by any severe symptomatology, including listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of motion on forward bending in the standing position, loss of lateral motion with osteoarthritic changes, narrowing or irregularity of joint space, or any of the above with abnormal mobility on forced motion. Finally, the examiner should discuss the degree of occupational impairment attributable to the Veteran's service- connected lumbar spine disability. In particular, the examiner should describe what types of employment activities would be limited because of the Veteran's service-connected disability, what types of employment would not be limited (if any), and whether any limitation on employment is likely to be permanent. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. Finally, readjudicate the issue on appeal, under both the old and revised regulations governing the schedular criteria for rating diseases and injuries for the spine, which were revised effective September 26, 2003. If the claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate 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 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). _________________________________________________ P.M. DILORENZO 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) (2010).