Citation Nr: 1122191 Decision Date: 06/08/11 Archive Date: 06/20/11 DOCKET NO. 10-36 692 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable rating for a low back strain prior to June 19, 2008, and a rating higher than 10 percent since. ATTORNEY FOR THE BOARD C. P. Swick, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from November 2003 to January 2004. This appeal to the Board of Veterans' Appeals (Board) is from a May 2008 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted service connection for low back strain and assigned an initial 0 percent (i.e., noncompensable) rating for this disability retroactively effective from June 20, 2006, the date the Veteran had filed this claim. The RO sent him a letter on June 7, 2008 notifying him of that May 2008 decision and apprising him of his procedural and appellate rights in the event he elected to contest the decision by appealing to the Board. On June 19, 2008, so the same month he received that notification, the Veteran telephoned the RO requesting a higher rating for this low back disability. See the Report of Contact (VA Form 119). That telephone call apparently was not treated as a Notice of Disagreement (NOD) with the noncompensable rating initially assigned because it was not in writing. See 38 C.F.R. § 20.201 (2010). Instead, the RO treated that call as an entirely new claim for an increased rating. And after having the Veteran undergo a VA compensation examination in August 2008, and considering the results, the RO issued another decision later in August 2008 increasing the rating for his low back strain from 0 to 10 percent as of June 19, 2008, the date of receipt of his claim for an increased evaluation. That June 19, 2008 claim for an increased evaluation for this low back strain, however, was, in actuality, a timely NOD with the noncompensable rating that initially had been assigned for this disability. See Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002) (indicating a NOD need not contain any magic words or phrases). Cf. Tomlin v. Brown, 5 Vet. App. 355, 357-58 (1993) (indicating that testimony offered at a hearing, once transcribed, can satisfy the requirement that a statement be "in writing"). This is especially true when considering that the telephone call on that date was, in fact, transcribed into a written document for the file as reflected by the Report of Contact (VA Form 119). So the Veteran timely appealed for a higher initial rating. See Fenderson v. West, 12 Vet. App. 119 (1999) (indicating that, in this circumstance, VA adjudicators must consider whether to "stage" the rating to compensate him for times since the effective date of his award when his disability may have been more severe than at others). And because the RO already since has increased the rating for his low back disability, the issue now on appeal is whether he was entitled to an initial compensable rating back to when the RO initially received his claim for service connection for this disability on June 20, 2006, and whether he has been entitled to a rating higher than 10 percent since the increase to this level as of June 19, 2008. The claim requires further development, however, before making these necessary determinations. So the Board is remanding the claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND VA is generally required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) (West 2002). This duty to assist includes providing a thorough and comprehensive medical examination, especially where the available evidence is too old for an adequate assessment of the Veteran's current condition. Robinette v. Brown, 8 Vet. App. 69, 76 (1995); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). As mentioned, the Veteran's most recent VA compensation examination for his low back disability was in August 2008, so nearly three years ago. His other VA compensation examination, prior to that one, was in November 2006. In a statement submitted along with his August 2010 substantive appeal (VA Form 9), he indicated his back pain is getting progressively worse - including especially since those VA examinations, requiring reevaluation. So another examination is needed to ascertain the present severity of his disability. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (where the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). See, as well, VAOPGCPREC 11-95 (April 7, 1995) and Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the claim is REMANDED for the following additional development and consideration: 1. Schedule another VA compensation examination to reassess the severity of the Veteran's low back disability (a low back strain). The claims file, including a complete copy of this remand, must be made available to the designated examiner for review of the pertinent medical and other history. The Veteran is hereby advised that failure to report for this examination, without good cause, may have adverse consequences on this pending claim. Updated information is specifically needed concerning the Veteran's range of motion on forward flexion, backward extension, left and right lateral flexion (side bending), and left and right lateral rotation (twisting). The examiner must additionally indicate whether pain causes additional limitation of motion, such as during prolonged or repeated use of the low back or when the pain is most problematic ("flare ups"). And, if possible, the examiner should try and quantify the amount the Veteran's motion is additionally restricted in this circumstance. Comment is needed, as well, concerning whether there is additional disability due to weakness, premature or excess fatigability, or incoordination, and if possible this additional disability also should be quantified. And based on the range of motion shown, the examiner must indicate whether there is ankylosis, either favorable or unfavorable. Other concerns include whether there is degenerative joint or disc disease associated with the low back strain and, if there is, whether for example there is associated radiculopathy or sciatic neuropathy affecting the lower extremities. 2. Then readjudicate the claim for higher ratings for the low back disability based on the results of this additional VA compensation examination and any other evidence submitted or obtained. If higher ratings are not granted to the Veteran's satisfaction, send him a supplemental statement of the case (SSOC) and give him an opportunity to submit written or other argument in response before returning the file to the Board for further appellate consideration of the claim. The Veteran has the right to submit additional evidence and argument concerning the claim 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). _________________________________________________ KEITH W. ALLEN 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).