Citation Nr: 1306808 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 09-26 852 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine (low back disability). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from November 1984 to July 1988, from September 1989 to October 1993, and from February 1998 to September 2000. He had periods of active duty for training (ACDUTRA) including from September 14, 2003, to September 25, 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Cleveland, Ohio, Regional Office (RO) of the Department of Veterans Affairs (VA). The Board remanded the case in April and July 2012 for further evidentiary development. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). REMAND In April 2012, the Board remanded the case for additional development to include action to: 1) obtain outstanding pertinent VA treatment records dated after April 2009 and 2) to schedule the Veteran for a VA orthopedic examination for an evaluation of his service-connected arthritis of the lumbar spine and "any associated neurological abnormalities." Pursuant to the Board's remand, VA treatment records dated from April 2009 to October 2011 were added to a Virtual VA electronic record. The Veteran was also provided a VA examination in May 2012. In the May 2012 VA examination report, the examiner noted the claims file had been reviewed and concluded that there was femoral nerve but no sciatic nerve involvement, and there was no resultant bowel or bladder impairment. However, this is inconsistent with contemporaneous VA treatment records showing complaints of bowel and bladder urgency. Given the inconsistency in the record, the Board remanded the case in July 2012. On remand, the Board requested that the May 2012 VA examiner review the more recent evidence including the VA treatment records dated in 2011 and 2012, which included additional information as to his bowel and bladder complaints and a diagnosis of lumbar radiculitis. During the remand period the Veteran submitted additional VA treatment records dated in July 2012 which includes a diagnostic assessment of diminished sensation of the left lateral leg. The examiner that conducted the May 2012 examination provided an addendum to this report in August 2012. The VA physician examiner stated: * The C-file was reviewed on 8/18/2012. The veteran did not indicate during the exam that he had any radicular symptoms. Straight leg raise was negative. Lumbar MRI from 2012 shows mild displacement of the right S1 nerve root by disc bulge without significant neural foraminal or central canal stenos. No changes to prior C&P report are warranted. It appears that the VA examiner is stating that based on little or no objective clinical evidence found on the May 2012 examination including the fact that the Veteran did not report any radicular symptoms, his May 2012 conclusions are the same. However, this does not take into consideration that the Veteran does now complain of radicular symptoms and there have been findings of diminished sensation in the left lateral leg and a diagnosis of lumbar radiculitis. Also, there appears to be an inconsistency as to which nerve roots are impacted. VA treatment records denoting neurological manifestations involving the lower extremities must be addressed directly. As noted under Note (1) of the General Rating Formula for rating spinal injuries, VA must evaluate any associated objective neurologic abnormalities separately under an appropriate diagnostic code. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. Therefore, another examination is needed that specifically addresses the Veteran's complaints of radiating pain and bowel and bladder impairment. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Provide the Veteran an opportunity to identify any additional healthcare provider who has treated him for his lumbar spine disability from 2012 onward. After securing any necessary authorization from him, obtain all identified treatment records not already in the claims file. He also must be appropriately notified if efforts to obtain identified records are unsuccessful. 38 C.F.R. § 3.159(e). 2. Upon receipt of all additional records, schedule a VA compensation examination (orthopedic and neurological) to assess the severity of his lumbar spine disability. All diagnostic testing and evaluation needed to make this determination should be performed, and all clinical findings reported in detail. The examiner must review the claims file for the pertinent medical and other history, including a complete copy of this remand. When reassessing the severity of the lumbar spine disability, the examiner must specify the range of motion on forward flexion, backward extension, left and right lateral flexion (side bending), and left and right rotation (twisting). These ranges of motion should be measured in degrees, with normal range of motion additionally indicated for comparison. If motion is so restricted that there is what amounts to ankylosis, favorable or unfavorable, then this must be expressly indicated. The examiner must also determine whether there are objective clinical indications of pain/painful motion, weakened movement, premature/excess fatigability, or incoordination and, if feasible, these determinations should be expressed in terms of the degree of additional range-of-motion loss due to such factors. This includes instances when these symptoms "flare-up" or when the lumbar spine is subject to prolonged, repetitive motion over a period of time. This determination also should be portrayed, if feasible, in terms of the degree of additional range of motion lost due to these factors. The examiner should comment, as well, on whether the Veteran's intervertebral disc syndrome (IVDS) is productive of incapacitating episodes* and, if so, the total duration of them during the past 12 months. *According to Note (1) in 38 C.F.R. § 4.71a , Diagnostic Code (DC) 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Furthermore, the examiner should discuss the severity of any associated neurological impairment - including, in particular, involving the lower extremities (e.g., decreased sensation from radiculopathy or sciatic neuropathy), aside from any orthopedic impairment shown. In considering the degree of impairment involving any nerve of the lower extremities, the examiner should identify the nerve and assess impairment according to whether there is what amounts to complete versus incomplete paralysis of this nerve and whether it is mild, moderate, moderately severe, or severe. The Veteran is hereby advised that failure to report for this scheduled VA examination, without good cause, may have detrimental consequences on this pending claim. 38 C.F.R. § 3.655. 3. Then readjudicate this claim in light of all additional evidence. If this claim is not granted to the Veteran's satisfaction, send him an SSOC and give him an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran 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). _________________________________________________ K. Parakkal 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).