Citation Nr: 1105877 Decision Date: 02/14/11 Archive Date: 02/28/11 DOCKET NO. 09-04 096 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an increased rating for sacroiliitis, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran had active duty service from November 1986 to November 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in March 2007, a statement of the case was issued in January 2009, and a substantive appeal was received in January 2009. A Board hearing at the local RO was held in September 2010. Although it appears that in the initial grant of service connection, the RO considered the Veteran's left hip symptomatology when rating his service-connected sacroiliitis, in a July 2010 statement, the Veteran's representative appears to assert that the Veteran is seeking service connection for a separate bilateral hip disability. Accordingly, as this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it and it is referred to the AOJ for clarification and appropriate action. 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 is seeking a rating in excess of 20 percent for his service-connected sacroiliitis. By way of background, the Veteran filed his current claim for an increased rating in December 2005. Subsequently, in support of his claim, the Veteran submitted private treatment records showing complaints of continuing back pain as well as a diagnosis of a L5-S1 herniated nucleus pulposis (HNP) and findings of lumbar radiculopathy. In November 2006, the Veteran underwent a L4-S1 posterolateral spine fusion for degenerative disk disease. Prior to the surgery, he was afforded a VA examination in May 2006. The examiner diagnosed chronic low back pain degenerative joint disease of the lumbar spine. Importantly, in an addendum in December 2006, another examiner determined that the symptoms of sacroiliitis and L5-S1 HNP could not be reasonably separated and the only way to differentiate would be to inject the S1 joint with Lidocaine. Based on review of the claims file, it does not appear that this procedure was done. Nevertheless, in a February 2007 rating decision, the RO granted a 20 percent disability rating, effective the date of claim, and in consideration of the addendum, appeared to contemplate all of the Veteran's low back symptomatology in the assigned disability rating. Moreover, subsequently in a February 2009 rating decision, the RO assigned a temporary total evaluation of 100 percent based on surgical treatment necessitating convalescence from November 1, 2006 to January 1, 2007, and then continued the 20 percent disability rating thereafter, pending a VA examination. Importantly, the RO indicated that although the current back disability had been diagnosed as discogenic, it appeared to be the same lumbosacral pain that the Veteran had experienced since service. In other words, the RO has attributed the Veteran's degenerative disk disease to service. Subsequently, the Veteran was afforded another VA examination in March 2009. However, for the reasons discussed in more detail below, the Board determines that this examination is insufficient for rating purposes. Initially, the examiner did not have to the claims file to review in conjunction with the examination. Further, the examiner performed range of motion testing and opined that the Veteran suffered from pain, fatigue, possible lack of endurance and weakness. However, despite the prior opinion which indicated that the symptomatology could not be differentiated and the subsequent findings by the RO, the examiner attributed these symptoms do the Veteran's lumbar spine/diskogenic pain condition as opposed to his sacroiliitis. He then provided that to express any additional limitation in degrees would be mere speculation. He also indicated that he was unable to express any additional limitation during flare-ups as it would be resorting to mere speculation. However, the Board must be able to evaluate the Veteran's low back disability under DeLuca v. Brown, 8 Vet.App. 202 (1995), and 38 C.F.R. §§ 4.40, 4.45, which allows for consideration of functional loss due to pain, weakness, excess fatigability and incoordination causing additional disability beyond that reflected on range of motion measurements. Further, recent case law has found that a VA examination is insufficient if it fails to provide a clear rationale or explanation for the opinions expressed. Moreover, if an opinion cannot be made without resorting to mere speculation, the examiner must provide a rationale or reason for this finding as well. See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010) (recognizing legitimacy of inconclusive medical opinion when "time for obtaining other information has passed" and opinion is based on all "procurable and assembled data"), 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); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (stating that a medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions). Moreover, despite findings of decreased lower extremity strength found on examination and prior objective findings of radiculopathy, the examiner also failed to offer an opinion as to whether the Veteran suffered from any associated neurological abnormality of the lower extremities. As he did not review the claims file, it is apparent that he was unaware of the previous private treatment records that showed a diagnosis of lumbar radiculopathy. Significantly, it does not appear that the Veteran had been afforded an electromyogram and nerve conduction study (EMG/NCS) concerning any possible associated neurological abnormality. See 38 C.F.R. § 4.71a, Diagnostic Code 5236, Note 1 (Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment or radiculopathy, are to be evaluated separately). Thus, given the deficiencies described above, the Board must find that the most recent VA examination is insufficient for rating purposes and the Veteran should be afforded another VA examination to assess the severity of the Veteran's low back disability and any associated neurological abnormalities. Accordingly, the case is REMANDED for the following actions: 1. The Veteran should be afforded an examination to ascertain the severity of his service-connected low back disability and any associated neurological abnormalities. Any and all indicated evaluations, studies, and tests, to include an EMG/NCS should be accomplished, and complaints and clinical manifestations should be reported in detail. The examiner is requested to specify whether the Veteran's degenerative disc disease has caused any 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, and if so, specify the duration of such episodes in the past year. The examiner is also requested to specify whether the Veteran has radiculopathy of the lower extremities and, if so, whether it more nearly approximates mild, moderate or severe incomplete paralysis of the affected nerve. In accordance with the guidance from the Court in DeLuca, the examination report should address any weakened movement of the lumbar spine, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and provide an opinion as to how these factors result in any limitation of motion. If the Veteran describes flare-ups of pain, the examiner should offer an opinion as to whether there would be additional limits on functional ability during flare-ups, and if feasible, express this in terms of additional degrees of limitation of motion during the flare-ups. If the examiner is unable to offer an opinion as to the nature and extent of any additional disability during a flare-up that fact should be so stated along with a rationale for this finding. A clear rationale for all opinions should be provided as well as a discussion of the facts and medical principles involved. However, if the requested opinion cannot be provided without resorting to speculation, the examiner should so state and provide a clear rationale as to why an opinion cannot be provided without resort to speculation. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, the Veteran's claims file must be made available to the examiner for review. 2. Thereafter, and after any further development deemed necessary by the RO/AMC, the RO/AMC should review the expanded record and determine if a higher is warranted for the service-connected low back disability and any associated neurological abnormalities. The Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. 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). 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). _________________________________________________ M. SABULSKY 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).