Citation Nr: 1305236 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 10-35 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a disability rating in excess of 10 percent for service-connected lumbar spine strain with radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from September 1986 to January 1987, and from December 2003 to April 2005. This appeal comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision by the Nashville, Tennessee Regional Office (RO) of the United States Department of Veterans Affairs (VA). A video conference hearing was held in May 2012, with the Veteran sitting at the RO, and the undersigned Veterans Law Judge sitting in Washington, DC. A transcript of the hearing testimony (transcript) is associated with the claims folder. At the outset of the video conference hearing, it was noted that a claim for service connection for a cervical spine disorder (strain) had been denied by the RO in August 2009, after which, following the Veteran expressing his disagreement, a Statement of the Case (SOC) was issued in August 2010. The Veteran thereafter filed a substantive appeal which was received by the RO on August 25, 2010. Review of the substantive appeal seems to show that the Veteran intended to limit his appeal to the lumbar spine increased rating claim. See pages two and three of transcript. As such, and as discussed in May 2012, the issue of whether or not a timely appeal has been filed with respect to the RO's August 2009 denial of service connection for a cervical spine disorder is referred to the agency of original jurisdiction (AOJ) for consideration. 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 In order to give the Veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. The Veteran's service-connected lumbar spine strain with radiculopathy has been evaluated using criteria of Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine (which includes Diagnostic Code 5237), a 10 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or muscle spasm or guarding enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or with favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. The Veteran was most recently afforded a VA spine examination to evaluate the nature and severity of his service-connected lumbar spine in June 2010. See VA spine examination report. The Veteran denied problems associated with radiating pain down into his legs, but did complain of some numbness at the medial aspect of his left foot. Thoracolumbar range of motion testing showed: forward flexion to 80 degrees, extension to 25 degrees, bilateral lateral bending to 30 degrees, and bilateral lateral rotation to 30 degrees. Pain was demonstrated on the last 15 degrees of motion testing in all movements. Some evidence of left-sided spine spasm was also reported to be present. Residuals of lumbar strain was noted. At his May 2012 hearing, the Veteran complained that he experienced tingling from his back down into both legs to the bottom of his feet. See page four of transcript. The Board parenthetically notes that a VA peripheral nerves examination report, dated in September 2011, includes a diagnosis of bilateral feet paresthesias. He added the pain was getting worse "every day." See page five of transcript. He additionally report that he had muscle spasms. Id. Also at his May 2012 hearing the Veteran testified that he received medical treatment at a named VA "North clinic" in Memphis, Tennessee. See page six of transcript. The most recent VA medical records on file are dated in July 2011. As this case is being remanded, copies of any available VA medical records dated from July 2011 to the present, need to be obtained and incorporated in the claims file. In this regard, records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of that claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466- 67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). As mentioned, the Veteran was last afforded a VA examination for his lumbar spine in June 2010. This is approximately two and a half years ago. In some instances, 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 Peters v. Brown, 6 Vet. App. 540, 542 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). In this case, the Veteran testified at his May 2012 hearing that he felt the severity of his lumbar spine disability had increased. In light of the factors noted above, as well as in contemplating that the Veteran has recently complained of both orthopedic and neurologic-based symptoms, the Board concludes that, in this case, another VA examination - in which the Veteran is to be examined both orthopedically and neurologically -- is needed to render a decision on the claim. 38 C.F.R. § 3.159(c)(4). Therefore, in order to give the Veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. The Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Hence, in readjudicating this claim the RO must consider the Hart decision. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should seek to obtain all VA treatment records dated from July 2011 to the present, to include those from the "North Clinic" in Memphis. Any and all records obtained should be associated with the claims file. If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). 2. The AMC/RO should schedule the Veteran for VA orthopedic and neurological examination to determine the current severity of his service-connected lumbar spine disability. The claim files must be made available to the examiner, and the examiner should review the file prior to the examination. The examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any lower back disability. All appropriate tests and studies, including neurological studies and range of motion studies reported in degrees, must be accomplished. All findings should be made available to the physicians prior to the completion of their reports, and all clinical findings should be reported in detail. The orthopedic examination should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the service-connected low back disability. If pain on motion is observed, the examiner should indicate the point at which pain begins. The neurological examination should attempt to specify the Veteran's lower extremity symptoms which are attributable to his lumbar spine disability, as well as identify any additional neurological manifestations. In addition, after considering the Veteran's documented medical history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. Concerning the Veteran's low back disability, each examiner must answer the following questions: A. Is there favorable or unfavorable thoracolumbar ankylosis? If so, which and to what degree? B. What is the exact measurement for forward flexion of the Veteran's thoracolumbar spine? Does the Veteran's age, body habitus, neurologic disease, or other factors unrelated to disease or injury of the spine, in any way render the above provided range of motion value normal, even though it does not conform to the normal range of motion values set forth in Note (2) of 38 C.F.R. § 4.71a (2012). If so, a full supporting rationale for such a conclusion must be furnished. C. Does the Veteran's lumbar spine exhibit weakened movement, excess fatigability, or incoordination? If feasible, these determinations should be expressed in terms of additional lost range of motion or favorable or unfavorable ankylosis due to any excess fatigability, weakened movement or incoordination. E. During the prior twelve months has the Veteran experienced incapacitating episodes (i.e., a period of acute signs and symptoms which require bed rest prescribed by a physician and treatment by a physician) involving his low back disorder? If so, what is the total duration of these episodes? F. The examiner should address the extent of functional and industrial impairment due to the Veteran's service-connected lumbar spine disability. Any indications that the Veteran's complaints or other symptomatology are not in accord with the objective findings on examination should be directly addressed and discussed in the examination report. 3. The Veteran is hereby notified that it is his responsibility to report for the above-ordered VA examination, to cooperate in the development of the claim, and that 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 (2012). In the event that the Veteran does not report for any ordered examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address prior to the date of the examination. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. The AMC/RO should ensure that the requested action has been accomplished (to the extent possible) in compliance with this REMAND. If the ordered action is determined to have not been undertaken or to have been taken in a deficient manner, appropriate corrective action should be taken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. If, while in remand status, additional evidence or information received triggers a need for further development or assistance, such as providing the Veteran with updated notice of what evidence has been received and not received by VA as well as who has the duty to request evidence, then such development must be undertaken by VA. 38 U.S.C.A. §§ 5100, 5103 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). 6. Thereafter, and following any other indicated development, the AMC/RO should readjudicate the appealed issue of entitlement to a disability rating in excess of 10 percent for service-connected lumbar spine strain with radiculopathy. The AMC/RO must consider whether different ratings may be warranted for different time periods in light of the decision in Hart. If the appeal is denied, the Veteran and his representative should be provided a Supplemental SOC (SSOC) in accordance with 38 U.S.C.A. § 7105 (West 2002) which includes a summary of any additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should then be afforded an applicable time to respond. The appellant has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ MILO H. HAWLEY 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).