Citation Nr: 1124984 Decision Date: 06/30/11 Archive Date: 07/06/11 DOCKET NO. 08-35 210 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating higher than 20 percent for a mid-back disability, specifically, for residuals of a compression fracture at T-11 with spondylolisthesis and degenerative joint disease. 2. Entitlement to a rating higher than 10 percent for associated radiculopathy of the right lower extremity. 3. Entitlement to a rating higher than 10 percent for associated radiculopathy of the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. P. Swick, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Navy from July 1950 to April 1954. This appeal to the Board of Veterans' Appeals (Board) is from an August 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2009, the Board remanded the claims to RO via the Appeals Management Center (AMC) in Washington, DC, to obtain additional medical treatment records and for a VA compensation examination to assess the severity of the disabilities. The Veteran consequently had VA orthopedic and neurological examinations in November 2009. Unfortunately, the examiners did not answer all of the questions the Board has posed in the June 2009 remand, and the Board needed this information to properly rate these disabilities. The Board therefore determined there had not been substantial compliance with its remand directives and resultantly remanded the claims again in April 2010. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (requiring "substantial", though not "exact", compliance with remand directives). The Veteran consequently had another VA orthopedic and neurological examination in June 2010. But, regrettably, still additional information and development of the claims are needed, so the Board must again remand the claims to the RO via the AMC. The Board has advanced this appeal on the docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 conducting 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). The U. S. Court of Appeals for Veterans Claims (Court/CAVC) has held that a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). VA's duty to assist can include a requirement to conduct a thorough and contemporaneous examination of the Veteran that takes into account the records of prior examinations and treatment. See Green v. Derwinski, 1 Vet. App. 121 (1991); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination for a 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). Service connection is in effect for the residuals of a T-11 compression fracture with associated radiculopathy into the Veteran's right and left lower extremities. An October 1997 RO decision denied service connection for osteoarthritis of the lumbar spine, spondylosthesis at L5 with protrusion of the disk at L4/L5 and L5/S1, and central spinal stenosis at L3/L4, L4/L5 and L5/S1. An October 2006 RO decision denied service connection for a cervical spine condition. Therefore, as it stands, these disabilities of the adjacent lumbar and cervical segments of the Veteran's spine are not part and parcel of his service-connected disability. A September 2005 MRI, however, showed additional pathology within the thoracic region of the spine including disc herniations at the T6-7, T8-9 and T12-L1 levels. A medical opinion therefore is needed to determine whether this additional pathology is part and parcel of the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, 38 C.F.R. §§ 3.102 and 4.3, requiring reasonable doubt on any issue be resolved in the Veteran's favor, dictate that such signs and symptoms be attributed to the service-connected disability.) It also remains unclear from the June 2007, November 2009 and June 2010 VA examination reports which neurological symptoms the examiners are attributing to the service-connected disability as opposed to some other etiology. As noted above the Veteran was denied service connection for lumbar and cervical spine disabilities, so neurological complications of those disabilities would not be included in the ratings for his service-connected T-11 compression fracture and associated residuals, including his right and left lower extremity radiculopathy. The report of the November 2009 VA examination states the Veteran has mixed bilateral neuropathy of the lower extremities with radiculopathic (lumbar spine) and diabetic components, but that the symptoms do not anatomically correspond to T-11 radiculopathy. So this examiner apparently is disassociating this neuropathy from the service-connected disability. The reports of the June 2007 and June 2010 VA examinations, however, make no such distinction between lumbar radiculopathy, diabetic peripheral neuropathy and T-11 radiculopathy. Therefore, the Board needs additional medical opinion that clearly attributes the various symptoms, including this neuropathy, to their specific etiology. The Veteran also has asserted that his symptoms, particularly this neuropathy, should be rated as affecting the sciatic nerve rather than popliteal nerve. But the report of the June 2010 VA examination specifically states no popliteal nerve involvement. Still, though, the reports of the various examinations list several nerves as possibly involved - including the sural and peroneal are. So the Board needs to know which nerve(s) specifically is/are impaired due to the service-connected disability versus other unrelated conditions or factors. As well, the Veteran maintains the most recent June 2010 VA examiner's findings of weak dorsalis pedis and posterior tibialis pulses and purplish discoloration of both feet are symptoms of associated radiculopathy in the lower extremities. The November 2009 VA examiner noted absent dorsalis pedis and posterior tibialis suggesting that some of the muscle cramping may have been related to peripheral vascular disease (PVD), but that examiner did not specifically state that these symptoms were not related to or associated with the service-connected disability. Accordingly, the claim again is REMANDED for the following additional development and consideration: 1. By whatever means necessary, whether having the most recent June 2010 VA compensation examiner submit an addendum to the report of that evaluation or having the Veteran again re-examined, medical comment is needed to determine: 1) whether the additional thoracic spine pathology found on the September 2005 MRI, including disc herniations at the T6-7, T8-9 and T12-L1 levels, are residuals of the T-11 compression fracture and therefore part and parcel of this service-connected disability; 2) the specific neurological complications of this service-connected disability, including insofar as the severity of the symptoms and specific nerves involved; and 3) whether the symptoms of weak/absent dorsalis pedis and posterior tibialis pulses and purplish discoloration of the feet are related to or associated with this service-connected disability or, instead, the result of other unrelated conditions or factors (like PVD, diabetic peripheral neuropathy, and/or lumbar radiculopathy if the lumbar radiculopathy is not the result of or associated with the service-connected T-11 compression fracture. In making these important determinations, the examiner is reminded that the Veteran has been denied service connection for lumbar and cervical spine disabilities. So, to the extent possible, the examiner must specifically differentiate symptoms related to the service-connected T11 compression fracture from those attributable to or associated with non-service connected conditions such as PVD, lumbar spine disability, cervical spine disability, and diabetes mellitus. All necessary diagnostic testing and evaluation needed to make these determinations should be performed. The claims file, including a complete copy of this remand (and the prior remands), must be made available to the examiner(s) for review of the pertinent medical and other history. 2. Then readjudicate the claims for higher ratings for the residuals of the T11 compression fracture and associated radiculopathy in the right and left lower extremities in light of all additional evidence obtained. If these claims are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional written or other argument in response before returning the file to the Board for further appellate consideration of these claims. The Veteran has the right to submit additional evidence and argument concerning the claims the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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).