Citation Nr: 1301199 Decision Date: 01/11/13 Archive Date: 01/16/13 DOCKET NO. 10-00 079A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased initial rating for degenerative disc/joint disease of the lumbosacral spine, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from July 1982 to March 1995. This matter comes before an October 2008 rating decision of the Philadelphia, Pennsylvania, Department of Veterans' Affairs (VA) Regional Office (RO), which granted service connection for degenerative disc/joint disease of the lumbosacral spine and awarded a 10 percent rating, effective August 5, 2008. The Veteran disagreed with the rating awarded and the current appeal ensued. 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 claims that his degenerative disc/joint disease of the lumbosacral spine is more severe than the current evaluation reflects. A review of the record reveals that the Veteran underwent a VA examination in July 2008. It was determined that the Veteran had degenerative disc/joint disease of the lumbosacral spine, secondary to his service-connected arthritis of the left knee. The findings in connection with his lumbosacral spine disability resulted in a 10 percent rating. The Veteran disagreed with the findings and he underwent a July 2009 MRI, which showed severe degenerative disc disease. He underwent additional VA examination in May 2010, which revealed more severe findings. However, the examiner stated in the examination report that the Veteran demonstrated what appeared to be a more limited range of motion and impaired gait than was observed in non-examination situations. For example, the examiner stated that the Veteran was unable to accomplish forward flexion further than 30 degrees, but was observed by the examiner after the examination bending forward to drink from a water fountain with no apparent distress. The examiner also observed that while in the examination room, the Veteran walked very slowly with a single point cane. There was no major deviation in gait. However, she indicated that after the examination, the Veteran was observed to walk much more fluidly and more quickly after exiting the office to leave the building. As a result of the reported findings by the VA examiner, the RO requested that based on the examiner's statements of the Veteran's exaggerated ranges of motion, she provide an addendum of clarification and provide an estimate of all of the Veteran's ranges of motions consistent with his overall disability picture. The examiner stated that from her observations, it appeared the Veteran was capable of more range of motion than he demonstrated on his May 2010 VA examination, and he had better range of motion during examination in September 2008 and December 2009. However, she stated there was simply no way to give a specific range of motion reflecting a specific set of physical impairments, and to attempt to do so would be based on speculation. Because of the VA examiner's opinion that the Veteran was exaggerating his lack of range of motion in the May 2010 VA examination, and her failure to provide further clarification without resorting to speculation in the July 2010 addendum, the examination and addendum do not contain sufficient detail and are inadequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet.App. 303, 312 (2007). As a result, the Veteran needs to be provided another VA examination by a different examiner. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any new medical evidence, from VA or otherwise, that may have come into existence since the time the claims file was last updated by the RO/AMC. 2. The Veteran should undergo an appropriate VA orthopedic examination to determine the current severity of the Veteran's degenerative disc/joint disease of the lumbosacral spine. He should be examined by a different physician than examined him in May 2010 and provided the July 2010 addendum. All indicated studies, to include range of motion studies, and x-ray examination, should be performed. The claims file must be made available for review prior to the examination. A notation to the effect that this record review took place should be included in the report of the examiner. The examiner should indicate whether the Veteran has abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. It should also be noted if he has incapacitating episodes of at least 2 weeks, but less than 4 weeks during the past 12 months and the examiner must indicate whether it required bed rest and treatment prescribed by a physician. 3. When the development requested has been completed, the case should again be reviewed by the RO/AMC on the basis of the evidence of record. If any benefit sought on appeal is not granted, the Veteran and his agent should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ F. JUDGE FLOWERS 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).