Citation Nr: 1115374 Decision Date: 04/20/11 Archive Date: 05/04/11 DOCKET NO. 07-33 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for the period prior to August 8, 2007, and in excess of 20 percent thereafter, for service-connected degenerative disc disease of the lumbar spine (lumbar spine disability). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from September 1963 to September 1968. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, that granted service connection and assigned an initial noncompensable (0 percent) rating for the lumbar spine disability, effective March 9, 2005, the date of receipt of the Veteran's claim for service connection for lumbar spine disability. Thereafter, during the appeal, the Denver RO granted a staged 10 percent rating for lumbar spine disability for the initial rating period prior to August 8, 2007, and 20 percent thereafter. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2010). The Veteran's most recent VA examination took place in August 2007, overt three years ago. In an October 2007 VA Progress Note, the VA examiner reported that the Veteran's lumbar spine had decreased range of motion, but the VA examiner did not perform an examination. In a September 2008 statement, the Veteran reported that his back pain had worsened. In March 2011, the Veteran's representative contended that the Veteran's back pain has gotten progressively worse and that the Veteran continues to have pain and flare-ups. For these reasons, VA will provide the Veteran a more contemporaneous VA examination to assess the current nature, extent, and severity of his service-connected lumbar spine disability. Palczewski v. Nicholson, 21 Vet. App. 174 (2007); Snuffer v. Gober, 10 Vet. App. 400 (1997); Weggenmann v. Brown, 5 Vet. App. 281 (1993); VAOPGCPREC 11-95. The most recent VA treatment records in the claims file are dated in February 2008. Because the Veteran has indicated that he has continued to receive regular treatment for his back disability since that time, there are likely additional VA treatment records pertinent to the claim that are outstanding. Because these may include records that are pertinent to the Veteran's claim for a higher initial rating for lumbar spine disability, they should be obtained. 38 C.F.R. § 3.159(c)(2) (2010); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file records from the VA Medical Center in Grand Junction, Colorado, dated from February 2008 to the present. If any of the records are no longer on file, request them from the appropriate storage facility. All attempts to secure those records should be documented in the claims file. 2. Thereafter, schedule the Veteran for a VA spine examination to determine the severity of his service-connected lumbar spine disability, including any associated neurological impairment. The VA examiner should be provided with the relevant documents in the Veteran's claims file. Any opinion provided should be supported by a full rationale. The examiner should specifically: a) Provide the range of motion of the lumbar spine (extension, forward flexion, left and right lateral flexion, and left and right rotation), expressed in degrees, as well as state whether there is any favorable or unfavorable ankylosis of the back. b) Determine whether the back (thoracolumbar spine) exhibits weakened movement, excess fatigability, incoordination, pain, or flare-ups attributable to the service connected lumbar spine disability. These determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare ups. For example, the examiner should report the point in the range of motion when pain becomes apparent. c) Identify any associated neurological deformities associated with the service-connected lumbar spine disability. The severity of each neurological sign and symptom should be reported. d) List all neurological impairment caused by the service-connected lumbar spine disability. Provide an opinion as to whether any neurological symptomatology equates to 'mild,' 'moderate,' 'moderately severe,' 'severe,' incomplete paralysis, or complete paralysis of any nerve. Identify any affected nerve, and state the severity of the impairment of the nerve affected. e) State whether the Veteran has intervertebral disc syndrome (IVDS). If so, state whether IVDS results in incapacitating episodes; the duration of the episodes over the past 12 months should be reported. The examiner should note that for VA purposes an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. f) Determine whether the lumbar spine disability is manifested by weakened movement, excess fatigability, incoordination, flare-ups or pain. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. A rationale should be given for all opinions and conclusions expressed. If an opinion cannot be rendered without resorting to speculation, the examiner should explain why it would be speculative to respond. 3. After completing the requested actions, and any additional notification and/or development deemed warranted, the issue of an initial disability rating in excess of 10 percent for the period prior to August 8, 2007, and in excess of 20 percent thereafter, for service-connected lumbar spine disability, should be readjudicated in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO/AMC should furnish to the Veteran and his representative an appropriate Supplemental Statement of the Case (SSOC), and should afford them the appropriate time period for response. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2010). 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). _________________________________________________ J. Parker 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) (2010).