Citation Nr: 1204366 Decision Date: 02/06/12 Archive Date: 02/16/12 DOCKET NO. 10-24 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an increased evaluation for thoracic levoscoliosis, currently rated 10 percent disabling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active military duty from January 1996 to November 1999. The appeal comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. 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 also informed of having flare-ups of pain and incapacity associated with his levoscoliosis lasting 10 to 14 days each and occurring four times since he was last examined in July 2009. The Veteran further informed that the nurse at that July 2009 examination encouraged him to bend as far as he could, and he accordingly achieved excessive range of motion, resulting in a flare-up of his back condition that caused him to miss 10 days of work immediately following that examination. Thus, it would appear from the Veteran's testimony that the range of motion demonstrated at the July 2009 VA examination was in excess of that which the Veteran can reasonably, functionally perform. If a demonstrated range of motion results in 10 days of incapacity, that is not a range of motion that may be considered functional. The Veteran's testimony is to a degree corroborated by the VA examiner's report from the July 2009, noting that the Veteran's demonstrated ranges of motion were accompanied by pain. However, the examiner failed to address what range of motion was achievable without pain, or what functionally achievable ranges of motion (ranges that can be practically used in everyday life without precipitating incapacitating flare-up of disability or otherwise resulting in disabling pain) are for this Veteran. The United States Court of Appeals for Veterans Claims (Court) has held that when a diagnostic code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40 and 4.45 (2011) must also be considered, and that an examination upon which the rating decision is based must adequately portray the extent of functional loss due to pain on undertaking motion, fatigue, weakness and/or incoordination. DeLuca v. Brown, 8 Vet. App. 202 (1995). The July 2009 VA examination fails to portray the current level of impairment in functioning caused by pain associated with this Veteran's thoracic levoscoliosis. Once VA provides an examination in a service connection claim, the examination must be adequate or VA must notify the veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, based on the inadequacy of the July 2009 examination in addressing DeLuca issues, remand of this issue is required for an additional examination. Additionally, VA's duty to assist includes providing a thorough and contemporaneous medical examination, which takes into account prior medical evaluations and treatment. See 38 C.F.R. § 3.159(c)(4) (2011); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). The Veteran's testimony asserting greater severity of back disability than was reflected upon the July 2009 examination may be related in part to the lack of contemporaneous treatment records in the claims file, and hence the inability of the examiner to use such records to better ascertain the current nature and extent of the Veteran's disability. At his November 2010 hearing, the Veteran has informed of ongoing orthopedic treatment for his spine by VA, yet no VA treatment records have been obtained and associated with the claims file. Treatment records thus should be obtained upon remand, in furtherance of the claim. Also upon further examination, radiculopathy into the lower extremities should be addressed, because the Veteran has testified that lower extremity radiculopathy is present during flare-ups. The Veteran also testified that he achieved work accommodation of his periods of incapacity due to his back as a result of the Family and Medical Leave Act of 1993 (FMLA). Employers often require medical documentation to support extended absences under FMLA. Upon remand, the Veteran should be asked to supply copies of any such medical documentation or prescription or authorization for leave taken due to the Veteran's back disorder. VA has a responsibility to obtain records generated by Federal government entities that may have an impact on the adjudication of a claim. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Thus, on remand, all pertinent FMLA-related records must also be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran again and ask him to provide additional information or evidence regarding any testing or treatment received for his claimed thoracic levoscoliosis. In particular, ask him to provide or assist VA in obtaining any records which may document missed work due to his thoracic levoscoliosis, including any medical letters or notes addressing the need to take leave from work, treatment records, or work records documenting medical leave taken and the reasons for such leave. Ask him to provide details and any documentation concerning FMLA applications related to his thoracic levoscoliosis. Any responses and evidence received should be associated with the claims file, and any indicated development undertaken. 2. To the extent not already obtained and to the extent indicated based on the Veteran's responses concerning any FMLA applications, with the Veteran's assistance, contact the Veteran's employer and the Department of Labor to obtain official documentation of any use of sick leave since June 2008 and any pertinent application for FMLA benefits filed by the appellant, as well as copies of all of the medical records upon which any decision concerning any original/continuing claim(s) for FMLA benefits was based. Associate with the claims file copies of all requests, and all records and responses received. 3. Obtain and associate with the claims file VA records of treatment to the extent not yet already obtained and associated with the claims file. Also obtain any unobtained private treatment records, with the Veteran's authorization and assistance, as appropriate. 4. Thereafter, afford the Veteran an examination by a specialist in disorders of the spine, to address the nature and severity of his current thoracic levoscoliosis. This should be performed by an examiner other than the one who conducted the July 2009 examination, to avoid any prejudgment in findings or conclusions. The claims file must be made available to the examiner for review before the examination. In addressing the questions below, the examiner's opinion must be informed by a review of the Veteran's medical history and findings as documented upon any prior examinations or treatments. To the extent feasible, other evidence, to include lay statements, may be used to support a diagnosis or an assessment of severity. Lay statements should be considered, with due consideration of their credibility or lack of credibility based on other evidence of record or other evidence presented. Any indicated tests or studies should be conducted. The examiner should do the following: a. The examiner is advised that the current examination is necessitated by the failure of the VA examiner in July 2009 to provide an assessment of the level of functional range of motion that does not produce disabling pain. The Veteran has testified that his efforts at demonstrating range of motion despite pain at that July 2009 examination were so great that they immediately precipitated a flare-up of his back condition, resulting in his missing 10 days of work following the examination. The examiner is thus specifically asked to ascertain the functionally achievable ranges of motion (ranges that can be practically used in everyday life without precipitating incapacitating flare-up of disability or otherwise resulting in disabling pain) for this Veteran. b. Review the claims file including any pertinent records of examination and treatment, lay statements, and other documents as may reflect the current nature and severity of the Veteran's thoracic levoscoliosis. The examiner should expressly consider pertinent past records in the examination report. c. Following careful review of the claims folders and examination of the Veteran, identify all current disability associated with the Veteran's service-connected thoracic levoscoliosis. The examiner's findings and opinions as to symptoms and severity should reflect the Veteran's disorder as a whole and consideration of all relevant evidence, inclusive of statements by the Veteran to the extent these are found to be credible. Address the Veteran's complaints referable to the thoracic levoscoliosis and any other relevant evidence. d. To the extent possible, also address the extent of additional disability or impairment in functioning during episodes of flare-up, and the frequency and duration of these episodes. e. Provide findings of range of motion, as appropriate. To the extent feasible, provide an assessment of the amount of functional range of motion lost due to pain or pain-related disability. Specifically, address factors discussed in DeLuca v. Brown, 8 Vet. App. 202 (1995), of pain on undertaking motion, fatigue, weakness, and/or incoordination. Explain any findings of additional limitation of motion or limitation of functional use with repetitive motion due to any of these factors, and reconcile these with other pertinent findings. f. Note and explain findings on straight-leg raising, including any discrepancies found between straight-leg raising in the inclined and seated positions. Address the relevance of these findings and any other findings which may reflect upon radiculopathy or complained-of radiculopathy. Also address any additional medical findings which may support the Veteran's complaints. g. If the Veteran's complaints of symptoms or impairments in functioning associated with his thoracic levoscoliosis are inconsistent with or unexplainable by physical findings, the examiner should so state, and should provide an explanation of any such inconsistencies, and should state and explain any resulting conclusions as to the actual level of pain and level of work impairment or functional impairment due to thoracic levoscoliosis. In other words, address the extent to which disability complained-of by the Veteran is supportable by the medical evidence. Note and address any non-organic findings, psychogenic overlay, Waddle signs, etc. Address how these may (or may not) be reconciled with findings upon physical examination including ranges of motion, pain on motion, and further limitations, including the DeLuca factors. The examiner is advised, in this regard, that recent Court cases have implicitly required the Board to directly address the credibility of the Veteran, in order to weigh the Veteran's symptom complaints in the Board's consideration of evidence to support disability claims. h. A rationale must be provided for all opinions given, and the factors upon which each medical opinion is based must be set forth in the report. 5. Thereafter, readjudicate the remanded claim de novo. If any benefit sought is not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. 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. 2009). _________________________________________________ J. A. MARKEY 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) (2009).