Citation Nr: 1301048 Decision Date: 01/10/13 Archive Date: 01/16/13 DOCKET NO. 09-07 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for a low back disability. 2. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy. REPRESENTATION Veteran represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran had active service from August 1966 to April 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. Although the Board previously issued a decision in February 2011 which denied the Veteran's claims, he appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In March 2011, the Court issued a Memorandum Decision ordering that the Board's decision be vacated and remanded for further appellate review. The case now returns to the Board. The Board has reviewed the Veteran's physical claims file, as well as the Veteran's electronic file on the "Virtual VA" system, to ensure a complete review of the evidence in this case. Notably, there is no evidence pertinent to the claims in the Veteran's Virtual VA file that is not already included in the physical claims file at this time. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND In the Memorandum Decision, the Court ordered the Board to consider the Veteran's lay statements that he suffers from symptoms of left lower extremity radiculopathy, in addition to right lower extremity radiculopathy, as a result of his service-connected back disability. The Court also ordered the Board to consider whether the Veteran's lay statements as it relates to flare-ups of his low back condition and lower extremity radiculopathy were competent and credible and, if so, whether the flare-ups were sufficient to warrant a higher initial rating. Although the Court has ordered the Board to consider the Veteran's lay statements as it relates his left lower extremity complaints, the question of whether such complaints may be attributed to a diagnosis of left lower extremity radiculopathy, as opposed to some other condition, requires medical opinion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that when the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination). Additionally, the Veteran last underwent medical examination in connection with his claims in December 2008, approximately four years ago. In an undated statement submitted in October 2012, the Veteran wrote that his condition had worsened. He noted that he could not sleep due to the pain in his back and down both legs and his treating VA physician had increased his pain medication. The Veteran also submitted a VA treatment record dated in June 2012, which showed that he had moved from Nebraska to Florida two months before and established treatment through the Joint Ambulatory Care Center in Pensacola, Florida. With the exception of the June 2012 VA treatment record, the most recent treatment records are dated in December 2008. Governing regulations provide that VA's duty to assist includes conducting a thorough and contemporaneous examination of the Veteran which takes into account the records of prior examinations and treatment as well as to provide a medical examination or, obtain a medical opinion, when such an examination or opinion is necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.326; see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In addition, the U.S. Court of Appeals for Veterans Claims has held that an appeal of a disability rating requires consideration of the entire time period involved and contemplates staged ratings where the factual findings show distinct time periods in which the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Thus, in order to comply with the Court's decision and in consideration of the Veteran's assertion that his condition has worsened, the Board finds that a remand to secure recent treatment records and to afford the Veteran a contemporaneous medical examination to assess the current nature and extent of symptomatology associated with his service-connected low back disability and lower extremity radiculopathy is warranted in this case. 38 U.S.C.A. § 5103A (West 2002); Snuffer v. Gober, 10 Vet. App. 400 (1997); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). The examiner should also provide an opinion on whether the Veteran has left lower extremity radiculopathy associated with his low back disability, as well as comment on the extent of any additional functional loss attributable to flare-ups of the low back disability and associated radiculopathy. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding treatment records pertaining to the Veteran's low back disability and lower extremity radiculopathy dated from June 2012 to the present at the Joint Ambulatory Care Center in Pensacola, Florida, as well as records dated from December 2008 to the present at the VA Black Hills Health Care System and Nebraska-Western Iowa Health Care System. Once obtained, the treatment records should be associated with the record. The search should include any archived or retired records, if applicable. Any and all negative responses should be properly documented in the claims file, to include preparing a memorandum of unavailability and following the procedures outlined in 38 C.F.R. § 3.159(e), if appropriate. 2. Thereafter, schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected low back disability, to include any associated neurological impairment such as radiculopathy. All relevant documents (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be made available to and reviewed by the examiner in rendering the opinion. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. The examiner must confirm that the record was reviewed in the examination report. a. Based on review of the appropriate records, the examiner should identify what symptoms the Veteran has manifested since December 2008 that are attributable to his service-connected low back disability, to include range-of-motion findings. b. The extent of any incoordination, weakened movement, and fatigability on use due to pain must also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination as well as on repeated use or during flare-ups in terms of the degree of additional range of motion loss. c. The examiner should consider the Veteran's complaints pertaining to the left lower extremity and provide an opinion on whether the Veteran currently suffers from left lower extremity radiculopathy due to his service-connected low back disability. If so, the examiner must specify the date of onset of the Veteran's left lower extremity radiculopathy. d. The examiner should distinguish to the extent possible between symptomatology resulting from the Veteran's service-connected low back disability (and associated radiculopathy) and any non-service-connected disorders which may be found. If it is medically impossible to distinguish among symptomatology resulting from the disorders, the examiner should so state in the examination report. 3. After any additional notification and/or development deemed necessary is undertaken, the Veteran's claims should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his attorney should be provided with a Supplemental Statement of the Case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the Veteran and his attorney. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Veteran 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). _________________________________________________ K. J. ALIBRANDO 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).