Citation Nr: 1300653 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 08-02 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an increased rating for residuals of a lower back injury with chronic lower back pain and degenerative disc disease L5-S1, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: John S. Berry, Esq. ATTORNEY FOR THE BOARD E. Joyner, Counsel INTRODUCTION The Veteran served on active duty from January 1979 to January 1982 and from November 1982 to November 1993. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied entitlement to the benefit sought on appeal. The March 2007 rating decision also denied a compensable rating for left ear hearing loss. The appellant appealed the decision to the Board, and the case was referred to the Board for appellate review. When the case was before the Board in May 2009, the Board denied the Veteran's claim for a compensable rating for left ear hearing loss and remanded the Veteran's claim for a rating in excess of 20 percent for residuals of a lower back injury with chronic lower back pain and degenerative disc disease L5-S1 for additional development. Thereafter, in a June 2010 decision, the RO denied the claim for a rating in excess of 20 percent for residuals of a lower back injury with chronic lower back pain and degenerative disc disease L5-S1. The Veteran appealed the June 2010 denial to the United States Court of Appeals for Veterans Claims (Court). In a March 2012 Memorandum Decision, the Court vacated the Board's June 2010 decision and remanded the matter back to the Board for further proceedings consistent with the Memorandum Decision. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A medical opinion must support its conclusion with an analysis the Board can consider and weigh against other evidence in the record. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Historically, the Board notes that when the Veteran's claim for an increased rating for his lumbar spine disability was before the Board in May 2009, the Board remanded the claim in order to afford the Veteran a VA examination to assess any radiculopathy or nerve involvement associated with his lumbar spine disability. It was specifically noted in the May 2009 remand that the evidence then of record suggested a neurological component to the Veteran's lumbar spine disability affecting his left lower extremity. Specifically, the May 2009 remand referenced the December 2006 VA examination report, which reflects the Veteran's complaints of numbness and tingling in the left lower extremity. It was likewise noted that a December 2006 VA treatment record documented the Veteran's treatment for radiating pain and numbness into the left thigh. Moreover, VA examinations from October 1996, July 1997, and March 1999 were also referenced as containing a notation of a sluggish left Babinski, a diagnosis of paresthesia in the left leg, and a finding that sensation in the left foot was impaired/a notation that lumbar radiculopathy could not be ruled out, respectively. As such, the May 2009 remand instructed the RO to schedule the Veteran for an examination of the lumbar spine that included a neurological examination with an appropriate specialist in order to identify and describe any evidence of neurological abnormalities, radiculopathy, or other nerve involvement due to the Veteran's lumbar spine disability. Pursuant to the Board's May 2009 remand, the Veteran underwent a VA examination in July 2009. The report of that examination notes that there was a history of numbness and paresthesias, as well as a sharp, dull, and numbing pain which radiated to the legs. Sensory examination of the lower extremities was normal to vibration, light touch, and position sense. Reflexes were normal for knee jerk, ankle jerk, and plantar (Babinski). The examination report also referenced a July 23, 2009 neurology consult, which revealed normal EMG and nerve conduction studies of both lower extremities with no evidence of diffuse peripheral neuropathy or lumbar radiculopathy in the muscles tested. The examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine without objective evidence of radiculopathy. In the June 2010 Board decision, the Board found that the July 2009 VA examination was adequate and that the Board's May 2009 remand directives had been substantially complied with. The Board denied the claim for a rating in excess of 20 percent for the Veteran's lumbar spine disability, and determined that a separate rating for a neurological disability was not warranted. In the March 2012 Memorandum decision, the Court found that the July 2009 VA medical examination report was inadequate for several reasons, including but not limited to the examiner's failure to fully conduct a neurological examination, interpret the EMG results, and discuss favorable evidence in the claims file (including the Veteran's lay statements) that may indicate the Veteran suffers from a neurological disorder. See Barr, 21 Vet. App. 303 (2007). The Court also found that deficiencies in the July 2009 VA examination report reveal that the May 2009 Board remand instructions were not complied with. Therefore, the AOJ did not accomplish the objectives set forth in the prior May 2009 Board remand. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App 268 (1998). In sum, a remand is required in order to schedule the Veteran for a new VA neurological examination in order to fully ascertain whether the Veteran has an neurological abnormality, radiculopathy, or other nerve involvement due to his service-connected lumbar spine disability. Ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain copies of any outstanding VA treatment records dating from June 2007 to the present, to specifically include a copy of the July 23, 2009 VA neurology consult containing the EMG and nerve conduction studies, and associate them with the claims file. 2. Schedule the Veteran for a VA neurological examination of the lumbar spine in order to identify and describe any evidence of neurological abnormalities, radiculopathy, or other nerve involvement due to his service-connected lumbar spine disability. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. The examiner must provide a diagnosis of any neurological component of the Veteran's service-connected lumbar spine disability and specifically indicate which nerves, if any are involved. The examiner must further indicate if the nerve involvement is mild, moderate, moderately severe, or severe. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination, and the examination report must indicate that such a review was undertaken. The pertinent rating criteria must be provided to the examiner and the findings reported must be sufficiently complete to allow for rating under all alternate criteria. The examiner must specifically comment on the July 2009 VA examination report which notes a history of numbness and paresthesias; the July 2009 VA neurology consult containing the EMG and nerve conduction studies; the December 2006 VA examination report, which reflects the Veteran's complaints of numbness and tingling in the left lower extremity; the December 2006 VA treatment record, which reflects the Veteran's treatment for radiating pain and numbness into the left thigh; the March 1999 VA examination report, which reflects a finding that sensation in the left foot was impaired and indicates that lumbar radiculopathy could not be ruled out; the July 1997 VA examination report, which reflects a diagnosis of paresthesia in the left leg; and the October 1996 VA examination report which notes a sluggish left Babinski. With regard to the examiner's opinion as to whether the Veteran has a diagnosis of a neurological disability associated with his service-connected lumbar spine disability, a complete rationale for such opinion and any other stated opinion must be provided. If the examiner cannot render an opinion without resorting to speculation, the examiner must so state, and thoroughly explain why speculation is required. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for the scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. Once the above actions have been completed, the RO must re-adjudicate the Veteran's claim. If the benefit sought on appeal remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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. 2012). _________________________________________________ L. M. BARNARD 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) (2012).