Citation Nr: 1302255 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 09-33 303 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased disability rating in excess of 20 percent for degenerative disk disease (DDD) of the thoracolumbar spine with herniated nucleus pulposus at L3-S1. 2. Entitlement to an increased compensable disability rating for degenerative changes of the cervical spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Carole R. Kammel, Counsel INTRODUCTION The Veteran had active military service from May 1974 to May 1994. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. By that rating action, the RO, in part, continued 20 and noncompensable disability ratings assigned to the service-connected thoracolumbar and cervical spine disabilities, respectively. The Veteran appealed this rating action to the Board. The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board's review of the claims files reveal that further development on the issues on appeal is necessary prior to ensure that a thorough and complete record has been developed prior to further appellate review of the claims. Specifically, to schedule the Veteran for a spine VA examination to determine the current severity of her service-connected thoracolumbar and cervical spine disabilities and the extent of any associated separately ratable neurological disabilities of the left lower extremity and left upper extremity. VA last examined the Veteran to determine the current severity of her service-connected thoracolumbar and cervical spine disabilities in September 2007. She maintains that her thoracolumbar and cervical spine disabilities have increased in severity since the September 2007 examination. Notably, she points to surgery conducted in February 2008, which she says has not resolved her back and neck problems. She complains of increased in neck and lower back pain and numbness that radiated in the left lower and left upper extremities. The Board observes that the Veteran's spine was examined during a January 2008 VA Brain and Spinal Cord examination; however, range of motion studies of the lumbar spine and cervical spine were not performed. These findings are essential in evaluating her thoracolumbar and cervical spine disabilities under the applicable rating criteria. See 38 C.F.R. § 4.71a, Diagnostic Codes 5243 and 5003 (2012), respectively)). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. VAOPGCPREC 11-95. However, given the fact that VA last examined the Veteran's spine over four (4) years ago, and that there has been an obvious change in her disability since that time (status post laminectomy), the AMC should arrange for the Veteran to undergo a VA spine examination at an appropriate VA medical facility to determine the severity of her service-connected thoracolumbar and cervical spine disabilities. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one). See also Snuffer v. Gober, 10 Vet. App. 400 (1997). The Board also finds that another VA spine examination is necessary to determine whether any current neurological residuals of the left lower extremity and left upper extremity are secondary to the service-connected degenerative disk disease of the thoracolumbar spine with herniated nucleus pulposus at L3-S1 and degenerative changes of the cervical spine, respectively. The current evidence of record is in conflict as to whether the Veteran currently has radiculopathy of the left lower extremity and left upper extremity that are secondary to the above-cited service-connected thoracolumbar and cervical spine disabilities. For example, in February and August 2007 reports, A. H. PA-C indicated that most of the Veteran's left low back pain, left leg pain and neck and left arm pain were due, in part, to her thoracolumbar degenerative disk disease and degenerative disk at C5-6, respectively. (See February and August 2007 reports, prepared by A. H., PA-C). Recognition is given to the fact that the Veteran was involved in a March 2006 motor vehicle accident. There is also evidence that the Veteran's service connected disabilities low back (degenerative disc disease with herniated nucleus pulposus L3-L4, L4-L5, and L5-S1) and a cervical spine (degenerative disc disease) were essentially quiescent for an eight year period preceding the March 2006 accident, and that the Veteran's current complaints are related solely to the post-service accident. See Report of VA examination dated September 2007, Statement from R.S., MD, dated in July 2007, Report of Independent Medical Evaluation from S.M.V., M.D., dated October 2006. However, to date, there is no evidence that clearly identifies/diagnose a disability of the lumbar and cervical spines that is of strictly post-service origin. Thus, the Board finds that an additional VA spine examination is necessary in order to resolve the conflicting private and VA medical evidence as to whether any current neurological residuals of the left lower extremity and left upper extremity are secondary to the service-connected degenerative disk disease of the thoracolumbar spine with herniated nucleus pulposus at L3-S1 and degenerative changes of the cervical spine, respectively, as opposed to a nonservice-connected event (i.e., 2006 motor vehicle accident) or disease process. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA spine examination, with an appropriate examiner who has reviewed the claims files. The examiner should note the Veteran's subjective symptoms and address the following: i) Range of motion studies of the lumbar spine and cervical spine must be conducted, and commentary must be provided as to the extent of any painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. ii) The frequency and duration of any doctor-prescribed bedrest (i.e., incapacitating episodes) caused by either the lumbar spine and cervical spine must be described. If no bedrest has been prescribed, the examiner should so state. iii) The examiner must discuss whether there are any objective neurological abnormalities associated with either the lumbar or cervical spine, such as left lower extremity and left upper extremity radiculopathy, other neuropathy, or bowel/bladder abnormalities. For each identified abnormality, a description of its symptoms and severity is requested. In regard to any left lower extremity and left upper extremity radiculopathy found on examination, the examiner should describe the Veteran's symptoms and the extent of their severity (i.e., mild, moderate, etc.). If the examination clearly shows neurological symptoms of an etiology other than the service-connected DDD of the thoracolumbar spine with herniated nucleus pulposus at L3-S1 and degenerative changes of the cervical spine, the examiner should so state. In determining whether any currently present left lower extremity and left upper extremity is secondary to the service-connected thoracolumbar and cervical spine disabilities or in assessing the Veteran's current disabilities of the lumbar and cervical spines (e.g., loss of range of motion or incapacitating episodes), the examiner must indicate whether the Veteran has disabilities of the lumbar and cervical spines that can be clearly linked/associated with the March 2006 motor vehicle accident. He or she must discuss the February and August 2007 reports, prepared by A. H., PA-C, reflecting that the Veteran's left low back and left leg pain and symptoms and neck and left arm pain were in part, due to her thoracolumbar degenerative disk disease and degenerative disk at C5-6, respectively. The examiner is also requested to address the September 2007 VA spine examination report, wherein the VA examiner concluded that the Veteran's complaints surrounding her low back and cervical spine were related to her post-service March 2006 motor vehicle accidents and were not secondary to her service-connected low back and cervical spine disabilities. iv) The examiner is requested to provide a discussion of the effects of the disabilities of the lumbar spine and cervical spine, along with any associated objective neurological abnormalities, on the ability of the Veteran to secure and follow a substantially gainful occupation. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 2. The RO/AMC should review the claims folders and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. Specific attention is directed to the report of examination. If the requested report does not include fully detailed descriptions of pathology and all test reports, special studies or adequate responses to the specific opinions requested, the requisite report must be returned for corrective action. 38 C.F.R. § 4.2 (2012); see also Stegall v. West, 11 Vet. App. 268 (1998). 3. The RO must notify the Veteran that it is her responsibility to report for the above-scheduled examination and to cooperate in the development of her increased evaluation claims on appeal. The consequences for failure to report for a VA examination without good cause may include denial of the increased rating claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for an examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. Readjudicate the increased evaluation claims on appeal. If the maximum benefits sought on appeal remain denied, the Veteran and her representative should be provided a Supplemental Statement of the Case that addresses all the evidence received since the May 2009 Statement of the Case, and given an adequate time to respond. Thereafter, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ MICHAEL A. HERMAN 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).