Citation Nr: 1305089 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 10-17 294 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial evaluation in excess of 20 percent for a low back disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had service from October 1948 to July 1969 and from June 1971 to April 1988. This matter comes before the Board of Veterans' Appeals (Board) from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Board notes that a Virtual VA e-file exists for this Veteran. This e-file was reviewed for new or relevant information. The file contains VA treatment records that are not the subject of a supplemental statement of the case; however, as the Board has determined that remand is necessary, that defect will be cured with the issuance of a supplemental statement of the case upon completion of the development ordered below. In the September 2009 rating decision, the RO granted service connection for cervical spine and lumbar spine disabilities. The Veteran disagreed with the assigned ratings, placing both issues in appeal status. However, in his March 2011 substantive appeal, he specified that he sought to appeal only the evaluation of his low back disability. The Board also observes that in June 2012 the Veteran submitted a statement requesting an increase in the evaluation of his cervical spine disability. As this new claim has not been adjudicated by the agency of original jurisdiction (AOJ), it is referred for appropriate action. The Board also notes that the AOJ construed a December 2009 statement by the Veteran as including a claim of entitlement to compensation for radiculopathy of the bilateral upper extremities. A duty to assist letter was sent in February 2010, but this claim does not appear to have been adjudicated. The most recent rating decision in the file includes a code sheet that does not include any reference to these claimed disabilities. Accordingly, this issue is also referred to the AOJ for appropriate action. 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 seeks a higher evaluation for his low back disability, which is currently evaluated as 20 percent disabling. He has also stated that he has neurologic symptoms associated with this disability. The current 20 percent evaluation contemplates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. A higher rating requires forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. See General Rating Formula for Diseases and Injuries of The Spine, 38 C.F.R. § 4.71a (2012). Note 1 to the general rating formula directs that any associated neurologic abnormalities should be evaluated separately under the appropriate diagnostic code. The Veteran was most recently afforded a VA examination in June 2010. The examiner performed range of motion testing, noting that forward flexion was to 35 degrees; the Board observes that the combined range of motion was 55 degrees. While the examiner indicated that there was objective evidence of pain on active motion and on repetitive motion, he did not identify the point at which pain began. The examiner also identified various reflex and sensory findings. He noted that knee and ankle jerks were absent bilaterally and that the Veteran had decreased sensation to pinprick and hypoesthesia at the calf. He did not specifically indicate whether these findings were related to the Veteran's service-connected low back disability. Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the examination was inadequate because the provider failed to provide findings pertaining to the point during range of motion at which the Veteran experienced pain. Moreover, there is no indication regarding whether the neurological findings contained in the examination report are associated with the low back disability and subject to separate evaluation. As such, the Board finds that an additional examination is necessary. In light of the above discussion, the Board has determined that additional development is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the severity of his service-connected low back disability. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should also elicit a complete history from the Veteran, the pertinent details of which should be included in the examination report. The examiner's report should fully set forth all current complaints and pertinent clinical findings, and should describe in detail the presence or absence and the extent of any functional loss due to the Veteran's service-connected lumbar spine disability. In particular, the examiner should indicate the point during range of motion testing that motion is limited by pain. Consideration should be given to any loss due to reduced or excessive excursion, or due to decreased strength, speed, or endurance, as well as any functional loss due to absence of necessary structures, deformity, adhesion, or defective innervation. In particular, the examiner should comment on any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner's inquiry in this regard should not be limited to muscles or nerves, but should include all structures pertinent to movement of the joint. The examiner's report should include a description of the above factors that pertain to functional loss due to the low back, left knee, and left wrist disabilities that develops on repetitive use or during flare-up. Based on current examination of the Veteran as well as review of the evidence of record to include post service treatment reports and prior physical examinations of the Veteran, the examiner must express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. If flare-ups are not observed during the examination, the examiner should refer to earlier medical records and to the Veteran's lay statements to determine the severity of his flare-ups, and portray additional lost range of motion during such flare-ups. The examiner should state whether there are any currently present neurologic deficits caused by the Veteran's lumbar spine disability, and indicate the current severity of such neurologic manifestations. In this regard, the examiner's attention is directed to the previous June 2010 examination report reflex and sensory findings. The examiner should also describe the duration during the previous year of any incapacitating episodes caused by the Veteran's low back disability. A discussion of the complete rationale for all opinions expressed should be included in the examination report. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 3. Upon completion of the examination ordered above, review the examination report to ensure that it addresses the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 4. Readjudicate the Veteran's claim, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant 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). _________________________________________________ MICHAEL A. PAPPAS 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).