Citation Nr: 1304244 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 99-01 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for bilateral L-5 pars articularis defect with degenerative disc disease, spondylosis, intervertebral disc syndrome, mechanical low back pain, and reported ankylosis, rated as 10 percent disabling prior to January 30, 1997. 2. Entitlement to an increased rating for bilateral L-5 pars articularis defect with degenerative disc disease, spondylosis, intervertebral disc syndrome, mechanical low back pain, and reported ankylosis, rated as 20 percent disabling since January 30, 1997. 3. Entitlement to an initial rating in excess of 10 percent for a neurological deficit of the right foot associated with the service-connected lumbar spine disability. 4. Entitlement to an initial increased rating for depression not otherwise specified associated with the service-connected lumbar spine disability, rated as 30 percent disabling prior to July 19, 2010. 5. Entitlement to an initial increased rating for depression not otherwise specified associated with the service-connected lumbar spine disability, rated as 50 percent disabling since July 19, 2010. 6. Entitlement to an initial rating in excess of 30 percent for hypertensive heart disease. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from May 1987 to February 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In the September 1997 rating decision, the RO denied an evaluation in excess of 10 percent for the Veteran's low back disability. During the appeal, the RO increased the evaluation of the Veteran's low back disability to 20 percent - effective January 30, 1997, the date on which the Veteran filed his claim for increase - in a December 2001 supplemental statement of the case. The Board has previously remanded this case in June 2000, October 2003, August 2005, and December 2006. The Board rendered a decision on this issue in June 2009, at which time the Board denied an increased evaluation for the lumbar spine disability. The claimant timely appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2010 order, the case was remanded back to the Board for the reasons stated in the Joint Motion for Remand, in which both the Secretary of Veterans Affairs (Secretary) and the Veteran agreed further development was required. In December 2010, the Board remanded the claim again for further development. Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Therefore, the Board must consider whether a rating in excess of 10 percent for the lumbar spine disability prior to January 30, 1997, is warranted, even though it has not been previously listed as an issue on appeal. In an August 2011 rating decision, the RO granted service connection for a neurological deficit of the right foot associated with the service-connected lumbar spine disability effective June 17, 2011, and assigned a 10 percent disability rating effective that same date. This matter is part of the issue on appeal and is not a complete grant of benefits. AB v. Brown, 6 Vet. App. 35, 38 (1993). In a February 2006 rating decision, the RO granted service connection for depression not otherwise specified associated with the service-connected lumbar spine disability effective May 21, 2005, and assigned a 30 percent disability rating effective that same date. The Board finds that the Veteran perfected an appeal of the assignment of the 30 percent disability rating for the depressive disorder. Later in a March 2012 rating decision, the RO assigned a 50 percent disability rating for the depressive disorder effective July 19, 2010. This matter remains in appellate status. See id. In a January 2011 rating decision, the RO granted service connection for hypertensive heart disease effective October 21, 2009, and assigned a 30 percent disability rating effective that same date. In June 2012, the Veteran perfected an appeal of the assignment of an initial rating of 30 percent for hypertensive heart disease. In light of the above, the issues are as stated on the title page. In the June 2012 substantive appeal, the issue of entitlement to service connection for vision changes, to include as secondary to nephropathy as well as the service-connected hypertension, has been raised by the record, but it has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND In December 2010, the Board remanded the claim for an increased rating for the lumbar spine for a VA examination. As required by the directives of that remand, the examiner was supposed to determine whether the lumbosacral strain was more properly characterized as one of the following: (1) with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position; or, (2) severe, as demonstrated by listing of the whole spine to the opposite side; a positive Goldthwaite's sign; marked limitation of forward bending in standing position; loss of lateral motion with osteoarthritic changes; or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. The June 2011 examination report reflects that the examiner did not address that matter. Therefore, the RO did not comply with the directives of the December 2010 remand. Stegall v. West, 11 Vet. App. 268 (1998). Moreover, the June 2011 VA examiner provided conflicting medical evidence whether ankylosis is present. In light of the above, another VA examination is necessary. The June 2012 VA Form 9 obtained by the Board from the RO means that there is a temporary claims file. The RO should associate the temporary file with the Veteran's claim file. At a June 1997 VA examination, the Veteran reported that he has been treated at the Durham VA Medical Center. The RO has obtained records from the Durham VA Medical Center from July 1997 to December 2006 and from October 2007 to November 2009. The January 2011 rating decision reflects that there are additional treatment records from that facility that are not associated with the claims file. The RO should obtain all records from the Durham VA Medical Center from January 1996 to July 1997, from December 2006 to October 2007, and from November 2009 to the present. The last records from Triangle Orthopedists were dated in December 2002, and the RO needs to obtain more records from that provider. The Veteran authorized the release of records from Durham Radiology from January 2006 to the present, and no attempt has been made to obtain these records. The records from Dr. Pitts were last obtained in May 2007, and any more recent records from that doctor must be obtained. The records from Durham Neurology were last obtained in April 2007, and any more recent records from that facility must be obtained. All records from the Veteran's psychiatrist, Dr. Jabbour, from May 2005 to the present need to be obtained. The RO should afford the Veteran the explicit opportunity to identify all treatment for his lumbar spine disability with associated neurological deficit in the right foot since January 1996, for his depressive disorder since May 2005, and for his hypertensive heart disease since October 2009. Finally, given the passage of time, the RO should afford the Veteran new mental disorders and cardiovascular examinations. Accordingly, the case is REMANDED for the following action: 1. The RO should associate any existing temporary file with the Veteran's claims file. 2. The RO should ask the Veteran to identify all sources, VA and non-VA, for his lumbar spine disability with associated neurological deficit in the right foot since January 1996, for his depressive disorder since May 2005, and for his hypertensive heart disease since October 2009. The RO should attempt to obtain any identified records. The RO should attempt to obtain all records from Triangle Orthopedists from December 2002 to the present, all records from Durham Radiology from January 2006 to the present, any additional records from Dr. Pitts since May 2007, any additional records from Durham Neurology since April 2007, and all records from Dr. Jabbour from May 2005 to the present. Regardless of the Veteran's response, the RO should obtain all records from the Durham VA Medical Center from January 1996 to July 1997, from December 2006 to October 2007, and from November 2009 to the present. Any records obtained should be associated with the Veteran's claims folder. 3. Thereafter, schedule the Veteran for a VA orthopedic examination in order to determine the current nature and severity of the Veteran's low back disability. The claims folder (including relevant Virtual VA records) must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted. After examination of the Veteran and review of the claims file, the VA examiner should specifically comment on the following: (a) Whether there is any ankylosis, either favorable or unfavorable, of the Veteran's lumbar spine. (b) The range of motion of the Veteran's lumbar spine, and state whether any noted limitation thereof is slight, moderate or severe. (c) Whether the Veteran has lumbosacral strain, and state whether such is more properly characterized as: 1. With muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position; or, 2. Severe, as demonstrated by listing of the whole spine to the opposite side; a positive Goldthwaite's sign; marked limitation of forward bending in standing position; loss of lateral motion with osteoarthritic changes; or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. (d) Whether the Veteran has intervertebral disc syndrome (IVDS), and discuss whether and how often the Veteran has incapacitating episodes, which are defined as episodes of physician-prescribed bed rest within the past 12-month period. If intervertebral disc syndrome is found, the examiner should address whether there are any associated objective neurological abnormalities, and their severity. The VA examiner should also state whether any IVDS is most properly characterized as: 1. Moderate, described as recurring attacks; 2. Severe, described as recurring attacks with intermittent relief; or, 3. Pronounced, described as persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle jerk, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. (e) The manifestations and severity of the neurological deficit of the right foot and the specific nerve involved. A rationale for any opinion expressed must be provided 4. Schedule the Veteran for a VA mental disorders examination. The claims folder (including relevant Virtual VA records) must be made available to and be reviewed by the examiner in conjunction with the examination. All tests deemed necessary should be conducted. After examination of the Veteran and review of the claims file, the VA examiner should specifically comment on the nature and extent of any subjective complaints and objective findings. A Global Assessment of Functioning (GAF) score must be assigned, and must be described in terms of social and occupational impairment. A complete rationale for any opinion offered must be provided. 5. Schedule the Veteran for a VA cardiovascular examination. The claims folder (including relevant Virtual VA records) must be made available to and be reviewed by the examiner in conjunction with the examination. The examiner must describe the Veteran's medications and note what level of workload (in METs) results in dyspnea, fatigue, angina, dizziness, or syncope. The examiner must also indicate whether left ventricular dysfunction is present and, if so, what the ejection fraction (in percentage terms) is. Finally, the examiner must describe the extent to which congestive heart failure is present. A complete rationale for any opinion offered must be provided. 6. The Veteran is to be notified that it is his responsibility to report for the scheduled examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). 7. After the development requested, the RO should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. If any report is deficient in any manner, the RO must implement corrective procedures at once. 6. Thereafter, the RO must readjudicate the issues on appeal. The RO must consider the issue of an increased rating for the lumbar spine disability prior to January 30, 1997, under the old criteria for rating spinal disorders. The Board notes that, as the Joint Motion for Remand instructs, the RO must consider the issue of an increased rating for the lumbar spine disability since January 30, 1997, under both the old and new criteria for rating spinal disorders, as applicable. The RO must consider all claims under 38 C.F.R. § 3.321 (2012). If any benefit is not granted, the Veteran and his counsel must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. 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). This appeal 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). _________________________________________________ A. C. MACKENZIE 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).