Citation Nr: 1304246 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 02-18 171 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the lumbar, to include as secondary to service-connected chronic lumbar strain. 2. Entitlement to a disability rating in excess of 20 percent for service-connected chronic lumbar strain. REPRESENTATION Appellant represented by: Jeany Mark, Attorney at Law ATTORNEY FOR THE BOARD K. Neilson, Counsel INTRODUCTION The Veteran served on active military duty from January 1978 to December 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, and an April 2008 rating decision by the Department of Veterans Affairs VARO in New Orleans, Louisiana. (During the pendency of the current appeal, jurisdiction of the case was transferred to the New Orleans, Louisiana, RO due to the Veteran's change of residence in September 2003.) In the June 2001 decision, the RO increased the Veteran's disability evaluation for his service-connected lumbar strain from 10 percent to 20 percent, effective from March 1, 2001, and denied entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). In the April 2008 decision, the RO denied entitlement to service connection for lumbar spine degenerative disc disease. The Board notes that the procedural history of the increased-rating matter currently before the Board is a lengthy one, involving multiple actions by the Board and an appeal to and remand from the United States Court of Appeals for Veterans Appeals (Court). Notably, in October 2008, the Board denied a rating greater than 20 percent for the Veteran's service-connected lumbar strain and denied entitlement to TDIU. Thereafter, the Veteran filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In July 2009, the Veteran's representative and VA's General Counsel filed a joint motion with the Court to vacate the Board's decision with respect to these two issues and remand those matters, which motion was granted by the Court the same month. The basis for the Joint Motion included the Board's failure to consider whether separate ratings were warranted for any neurologic abnormalities, to address the effect of the Veteran's flare-ups of disability, and to discuss the appropriateness of staged ratings. On remand from the Court, the Board, in a December 2009 decision, remanded the issues of entitlement to a TDIU and to a rating a rating in excess of 20 percent for the service-connected lumbar strain for further development and readjudication. In a rating decision dated in March 2012, the RO granted entitlement to a TDIU, effective from February 27, 2001. To date, it does not appear that the Veteran has disagreed with any aspect of that decision. Accordingly, that issue is not currently before the Board. REMAND Regarding the Veteran's claim for service connection for degenerative disc disease of the lumbar spine, to include as secondary to service-connected chronic lumbar strain, the Board notes that the matter was referred for an expert medical opinion in August 2012, which opinion was received by the Board in October 2012. In November 2012, the Veteran and his representative were sent a copy of the medical opinion. The Veteran was also informed that he had sixty days from the date of the letter to submit additional evidence or argument in support of his claim. See 38 C.F.R. § 20.903 (2012). The RO explained that the Veteran had the right to have any newly submitted evidence, along with the evidence of record, considered by the agency of original jurisdiction (AOJ) for review and for issuance of a Supplemental Statement of the Case (SSOC) or, in the alternative, he could waive, in writing, his right to initial AOJ consideration of any newly submitted evidence, and request that the Board proceed with adjudication of his appeal without remanding his case to the RO. In January 2012, the Board received additional evidence and argument in support of the Veteran's service connection claim. Specifically, this evidence included a statement from the Veteran's private physician which was written in response to the expert medical opinion. (As part of the provided opinion, the medical expert had been directed to discuss the findings contained in a July 2010 statement from the Veteran's private physician.) Notably, however, the evidence was not accompanied by a waiver of consideration by the AOJ. As the Veteran has declined to provide a waiver of his right to have the AOJ review the additional evidence in the first instance, the Board must remand the Veteran's claim of service connection for lumbar spine degenerative disc disease to the AOJ for its due consideration of the newly submitted evidence, along with the evidence of record, and the issuance of a SSOC reflecting such consideration with respect to the service connection issue on appeal. See 38 C.F.R. § 20.1304(c). As noted in the introduction, the issue of entitlement to a rating in excess of 20 percent for service-connected chronic lumbar strain was remanded for further development in December 2009. Specifically, the Board directed the AOJ to schedule the Veteran for a VA examination to determine the current severity of the service-connected lumbar strain. The examiner was instructed to describe applicable ranges of motion and comment on whether there was functional loss due to pain, weakened movement, excess fatigability, or incoordination. To the extent feasible, the examiner was requested to express any such determination in terms of the degree of additional range of motion lost. Upon remand from the Board, a VA compensation examination concerning the Veteran's service-connected lumbar strain was conducted in February 2010. At that time, the Veteran complained of a dull aching back pain that radiated from his buttocks to his toes. He stated that his back pain had become progressively worse since its onset. He reported severe flare-ups every one to two months, lasting one to weeks, during which he had difficulty bending over and experienced a 50 percent decrease in flexion due to a "locking sensation." Physical examination of the back revealed evidence of pain on motion. Range-of-motion testing revealed flexion to 60 degrees, extension to 10 degrees, right side bending to 15 degrees, left side bending to 10 degrees, right rotation to 20 degrees, and left rotation to 20 degrees. The examiner noted objective evidence of pain on active range of motion and following repetitive motion. The Board notes that for disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion lost due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59 (2012). In the instant case, although the VA examiner noted the Veteran's complaints of pain on motion and indicated objective evidence of painful motion, the examiner made no specific finding as to the degree of range-of-motion lost due to pain on use. Thus, it is unclear from the examination at what point the Veteran experienced painful motion. In Mitchell, supra, the Court found similar examination findings to be inadequate because the examiner did not explicitly report "whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain." The Court stressed that such a finding is important in providing a "clear picture of the nature of the veteran's disability and the extent to which pain is disabling," so as to "allow the Board to ensure that the disabling effects of pain are properly considered when evaluating any functional loss due to pain that is attributable to the veteran's disability." Id. In accordance with the Board's December 2009 remand, the examiner was asked to comment on whether the Veteran had experienced any incapacitating episodes due to lumbar strain over the past year. The February 2010 examination report contains no evidence regarding incapacitating episodes and is thus noncompliant with the terms of the Board's prior remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers on a veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand). An examination is also necessary given that nearly three years have passed since the most recent compensation examination was conducted. The evidence has become stale, at least as it pertains to the current level of disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994) (holding that "[w]here an increase in the disability rating is at issue, the present level of disability is of primary importance"). The Board further notes that the examiner was requested to determine whether the Veteran had any neurological deficit attributed to his service-connected lumbar strain as opposed to nonservice-connected arthritis or degenerative disc disease of the lumbar spine. The February 2010 VA examiner noted numbness, paresthesias, and leg or foot weakness, and indicated that the etiology of those symptoms was not unrelated to the claimed disability. He also indicated right sciatica involving slight decreased strength with right lower extremity. Although the examiner provided an addendum to the examination report in July 2010, wherein he identified radiculopathy of the right lower extremity, which was determined to be related to the Veteran degenerative joint disease and not his service-connected lumbar strain, the examiner provided no rationale to support that opinion. Although there is no requirement imposed on a medical examiner to provide detailed reasons for an opinion, Ardison v. Brown, 6 Vet. App. 405, 407 (1994), it is incumbent on the VA examiner to consider all of the relevant evidence before forming an opinion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Indeed, a medical opinion is considered adequate only "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" See Stefl, 21 Vet. App. at 123 (quoting Ardison, supra). Given the VA examiner's earlier findings of possible neurologic symptoms not unrelated to the Veteran's lumbar strain, the Board finds that the lack of any supporting rationale for his opinion that the Veteran's radiculopathy is not related to his service-connected lumbar strain renders the July 2010 addendum opinion inadequate for rating purposes. See Stefl, supra. Accordingly, the increased rating claim must be remanded for the Veteran to be afforded another VA compensation examination to more definitively assess the current severity of his service-connected chronic lumbar strain, to include a determination of whether the Veteran suffers from associated neurological abnormalities. Accordingly, the case is REMANDED to the AOJ for the following action: 1. The AOJ should ensure that the Veteran has been properly notified of information and evidence necessary to substantiate his claim of service connection for lumbar spine degenerative disc disease on both a direct and a secondary basis. 2. The AOJ should contact the Alexandria VA Medical Center to obtain and associate with the claims file any records relevant to the Veteran's claims from December 2009 forward. 3. Thereafter, the Veteran should be afforded a VA examination to determine the current severity of his service-connected chronic lumbar strain. The claims folder and a complete copy of this remand must be made available to and reviewed by the examiner prior to the requested examination. All necessary tests and studies should be conducted and the examiner should review the results of any testing and include them in the report. The examiner should identify any orthopedic and neurological symptoms related to the service-connected lumbar strain and fully describe the extent and severity of those symptoms. The examiner must determine whether the Veteran's radiculopathy of the lower extremity, and any other possible neurological symptoms to include numbness, weakness, and paresthesias, is due to his service-connected lumbar strain or results from his lumbar spine degenerative disc disease. The examiner must provide support for his/her opinion in this regard that includes reference to lay or medical evidence contained in the claims folder, if appropriate, or to known medical principles relied upon in forming his/her opinion. With regard to any associated objective neurological abnormalities, the examiner should identify each nerve affected, or seemingly affected, and describe the degree of disability as "mild," "moderate," "moderately severe," "severe," or "complete paralysis." The examiner should also report the ranges of motion for the thoracolumbar spine and state whether the Veteran's service-connected disability is manifested by weakened movement, excess fatigability, incoordination, or pain. Such findings should be equated to degrees of additional loss of motion (beyond what is shown clinically) in order to reflect the degree of disability caused by the functional deficits. The examiner should also comment on whether the Veteran has experienced any incapacitating episodes within the previous 12 months. 4. After completing the requested actions and any additional notification and/or development deemed warranted, the AOJ should readjudicate the issues on appeal. The Veteran's claim for service connection for lumbar spine degenerative disc disease, to include as secondary to service-connected lumbar strain, must be considered on a de novo basis in light of the additional evidence. In readjudicting the Veteran's increased rating claim, the AOJ should also consider the potential applicability of staged ratings should be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2008). If any benefit sought is not granted, the Veteran should be furnished with a SSOC and afforded an opportunity to respond before the record is returned to the Board for further review. No action is required of the veteran until he is notified by the RO; however, the veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). 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). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).