Citation Nr: 1300618 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 10-32 062 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota THE ISSUES 1. Entitlement to an increased rating for the service-connected lumbar spine disability with degenerative changes. 2. Entitlement to service connection for lumbar radiculopathy as secondary to the service-connected disability of lumbar spine with degenerative changes. REPRESENTATION Appellant represented by: James G. Fausone, attorney ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1971 to September 1978, and February 1980 to August 1986. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in June 2009 and December 2010 by the RO. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The appeal is being remanded to the RO. VA will notify the Veteran if further action is required on his part. REMAND The Veteran is seeking an increased rating in excess of 10 percent for his service-connected lumbar spine disability with degenerative changes. In February 2012, the Veteran was afforded a VA examination for his service-connected disability. Range of motion testing was not performed. As reflected in the examination report, the Veteran declined the physical examination due to restrictions related to his January 2012 right total hip arthroplasty. The case must be returned for completion of an examination that is adequate for rating purposes. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007); Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Veteran also contends that he has lumbar radiculopathy as secondary to the service-connected lumbar spine disability. The service treatment records show that the Veteran reported having radiation of pain down the right leg. In November 2009, the Veteran was afforded a VA examination when he reported having pain in his left lower back that radiated down the back of his left leg and to the left big toe. A September 2011 VA treatment note indicates the Veteran reported having back pain but denied pain radiation down the legs. The note states the Veteran had bilateral symptoms that did not currently suggest radiculopathy. In November 2011, the Veteran's attorney submitted records from a private clinic showing a diagnosis of acute sciatica. He also submitted two articles that identified degenerative disc disease and lumbar spinal stenosis as causes of sciatica. In February 2012, the Veteran was afforded a VA examination to determine the nature and etiology of his reports of pain radiating into the bilateral lower extremities. At the VA examination, it was noted there was no diagnosis of radiculopathy. The examiner reasoned that there were no current symptoms of radiculopathy and the last report of symptoms was four months earlier when the Veteran reported having left leg numbness from the hip down to the left side foot. In a March 2012 statement, a private physician opined that, based on a letter from the Veteran's attorney and a review of an MRI of the lumbar spine obtained from VA, that the Veteran showed significant pathology which would be entirely consistent with his back pain and radicular leg symptoms. In a June 2012 statement, a private physician noted that he had reviewed the Veteran's medical file. He opined that the lumbar radiculopathy, as noted by the Veteran's history, was consistent with the MR imaging. It was his opinion that the findings were due to the service-connected disability. In a June 2012 statement, a private physician diagnosed the Veteran with degenerative lumbar scoliosis. The Veteran described his pain as worsening symptoms with left greater than right lower extremity pain to the level of his lateral calf and foot with periodic tingling in his toes. The evidence shows that additional evaluation is necessary to determine whether the Veteran experiences radiculopathy involving either leg as the result of his service-connected lumbar spine disability. Finally, the Board notes the Veteran's attorney submitted additional evidence for the claim for an increased rating along with a waiver of initial consideration by the RO in June 2012. However, in review of the evidence, the Board observes that the Veteran's attorney submitted evidence with the Substantive Appeal, dated March 2012, without a waiver of initial consideration by the RO. The Board is obligated to remand the issue of service connection for proper development, to include issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO should take all indicated action to provide the Veteran with the necessary authorizations for the release copies of any private treatment records not currently on file in order to associate them with record. If any records are unavailable, the unavailability should be noted in the claims file and the Veteran advised so that he can submit any copies in his possession. 2. After the above development has been completed to the extent possible, the RO should have the Veteran scheduled for a VA examination to determine the current severity of the service-connected disability of the lumbar spine, to include the nature and likely etiology of any lower extremity radiculopathy. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. The entire claims folder and a copy of this remand should be made available to the VA examiner. The examination report should reflect review of the claims file and remand. The examiner should review the entire claims file, to include the recently submitted private physician reports. The examiner should report all symptoms and manifestations due to the service-connected lumbar spine disability. The examiner should specify the range of motion in degrees of the thoracolumbar spine including forward flexion, extension, left and right lateral flexion, and left and right rotation. The examiner should specify whether the lumbar spine disability is manifested by painful motion, weakened movement, excess fatigability, or incoordination. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any painful motion, weakened movement, excess fatigability, or incoordination. The examiner should specifically identify all symptomatology and manifestations and should specify whether the lumbar spine disability causes limitation of motion, pain, spasm, severe guarding, abnormal gait, or abnormal spine contour. The examiner should indicate whether the service-connected lumbar spine disability caused the Veteran to develop radiculopathy of either lower extremity. In making this assessment, the examiner is asked to reconcile the differing diagnoses pertaining to radiculopathy of the bilateral lower extremities contained in the February 2012 VA examination report and private medical opinions. 3. After completing all indicated development, the RO should readjudicate the claims remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case (SSOC) and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). 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. 2012). _________________________________________________ STEPHEN L. WILKINS 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) (2012).