Citation Nr: 1303750 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 09-42 972 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to a compensable rating for residuals of a fracture of the sacrum. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Jackson, Counsel INTRODUCTION The Veteran had active military service from April 1968 to April 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that rating decision, the RO denied the Veteran's claim for a compensable rating for his service-connected residuals of fracture of the sacrum. In May 2012, the Veteran testified during a video-conference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify Veteran further action is required. REMAND The law provides that the VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159. In this case, the Veteran was afforded a VA examination in connection with his increased rating claim in January 2009. In his October 2009 substantive appeal, the Veteran asserted that the symptomatology associated with his service-connected residuals of fracture of the sacrum had increased in severity since his last VA examination. At his May 2012 Board hearing, the Veteran also testified that he had spasms and tenderness in his tailbone, as well as painful range of motion. VA's General Counsel has indicated that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Moreover, the Board notes that, in addition to his service-connected residuals of fracture of the sacrum, the Veteran also has a lumbar spine disorder (degenerative disc disease of the lumbar spine) for which service connection has not been established. In an October 2008 statement, the Veteran's treating physician opined that his service-connected injury (residuals of fracture of the sacrum) was the contributing factor to his on-going back problems. In the addendum to the January 2009 VA examination report, the examiner stated that fracture of the sacrum resolved with "NO" residuals and that the Veteran's thoracolumbar spine complaints were related to an injury sustained in a work accident (for which workman's compensation had been awarded). The physician found that there were "NO" employment limitations or residuals from fracture of the sacrum and that all limited range of motion and other abnormalities of the thoracolumbar spine have "NO" relation to the fracture of the sacrum in service. The Board notes that, where it is not possible to distinguish the effects of a nonservice-connected condition from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the veteran's service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998). Given this conflicting evidence as noted above, the Board finds that additional examination would be helpful in determining which symptoms are attributable to the Veteran's service-connected residuals of fracture of the sacrum and which symptoms are attributable to his nonservice-connected lumbar spine disorder. Therefore, the Board finds that an additional VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected residuals of fracture of the sacrum. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should contact the Veteran and obtain the names, addresses, and approximate dates of treatment of all medical care providers who treated him for his spine disorders. After obtaining any necessary authorization, all treatment records should be obtained and associated with the claims folder. A specific request should be made for any treatment records dated since January 2009. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service- connected residuals of a fracture of the sacrum. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected spine disability. The examiner should review the October 2008 private record in which the Veteran's treating physician opined that his service-connected injury (residuals of fracture of the sacrum) was the contributing factor to his on-going back problems. He or she should also review the January 2009 addendum to the VA examination report in which the physician indicated that fracture of the sacrum resolved with "NO" residuals, that the Veteran's thoracolumbar spine complaints were related to an injury sustained in a work accident (for which workman's compensation had been awarded), and that all limited range of motion and other abnormalities of the thoracolumbar spine have "NO" relation to the fracture of the sacrum in service. The examiner should state whether it is possible to separate the symptoms of the lumbar spine disorder (for which service connection has not been established) from the symptoms of the Veteran's service-connected residuals of fracture of the sacrum. If so, he should identify which symptoms are attributable to each disorder. Otherwise, he should note that the findings The examiner should report all signs and symptoms necessary for rating the Veteran's service-connected spine disability under the rating criteria. In particular, the examiner should provide the range of motion of the thoracolumbar spine in degrees and state whether there is any form of ankylosis. The examiner should also state indicate whether there is muscle spasm, guarding, localized tenderness, abnormal gait, abnormal spinal contour (including scoliosis, reversed lordosis, or abnormal kyphosis), or a vertebral fracture with loss of 50 percent or more of the height. The examiner should further state the total duration of incapacitating episodes over the past 12 months and identify and describe all neurological manifestations of the service-connected spine disability other than radiculopathy. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If any benefit sought is not granted, the Veteran and his representative 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 purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. 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. 2011). _________________________________________________ JESSICA J. WILLS 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) (2011).