Citation Nr: 1307236 Decision Date: 03/04/13 Archive Date: 03/11/13 DOCKET NO. 10-22 209 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an initial rating in excess of 10 percent for a low back disability with radiculopathy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from November 1966 to November 1969. This matter comes before the Board on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. In March 2011, the Veteran testified at a hearing before the undersigned. A transcript of the hearing has been associated with the claims file. At the March 2011 personal hearing, the Veteran raised a claim of service connection for a bilateral foot disorder secondary to his service connected low back disability with radiculopathy. However, this issue 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 RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran testified in March 2011 that his adverse symptomatology due to his low back disability with radiculopathy had gotten worse since his last VA examination in April 2010. Therefore, the Board finds that a remand for a new VA examination is required. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 84-86 (2006); Caffrey v. Brown, 6 Vet. App. 377 (1994) (holding that when a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate). In this regard, when readjudicating the claim the RO/AMC should take into account the Veteran's complaints of pain in accordance with the United States Court of Appeals for Veterans Claims (Court) holding in DeLuca v. Brown, 8 Vet. App. 202 (1995) (evaluation of musculoskeletal disorders rated on the basis of limitation of motion requires consideration of functional losses due to pain) and 38 C.F.R. §§ 4.40, 4.45, 4.59 (2012). When readjudicating the claim, the RO/AMC should also consider whether the Veteran meets the criteria for separate compensable ratings for either the radiculopathy diagnosed by the April 2010 VA examiner or the urinary and bowl problems the claimant testified about at his March 2011 personal hearing in accordance with Note (1) of the General Rating Formula for Disease and Injuries of the Spine. See 38 C.F.R. § 4.71a (2012), Also see Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (holding that where the record reflects that the appellant has multiple problems due to service-connected disability, it is possible for an appellant to have "separate and distinct manifestations" from the same injury, permitting separate disability ratings). At his March 2011 personal hearing, the Veteran also testified that he receives ongoing treatment from Sven Johnson, M.D., and Raymond G. Shea, M.D. Moreover, in statements in support of his claim the Veteran notified the RO that he receives ongoing treatment from VA. The record also reveals that the Veteran applied for VA vocational rehabilitation. Apart from VA treatment records, these documents do not appear to have been associated with the file. They should be sought. Accordingly, the appeal is REMANDED to the RO/AMC for the following actions: 1. Associate with the claims file, physically or electronically, the Veteran's post-April 2012 VA treatment records. All actions to obtain the requested records should be documented fully in the claims file. 2. After obtaining all needed authorizations from the Veteran, physically or electronically associate with the claims file the Veteran's post-2010 private treatment records from Dr. Johnson and post-2009 private treatment records from Dr. Shea. All actions to obtain the requested records should be documented fully in the claims file. 3. Associate with the claims file the Veteran's VA vocational rehabilitation file. All actions to obtain the requested file should be documented fully in the claims file. 4. After undertaking the above development to the extent possible, the RO/AMC should provide the Veteran with appropriate examinations to ascertain the current severity of his service connected low back disability with radiculopathy. The claims folder should be made available and reviewed by the examiner. All indicated tests and studies deemed appropriate should be accomplished and all clinical findings should be reported in detail. The examination report should include the following: a. range of motion studies; the effect of pain on motion, as well as the presence or absence of any weakened movement, including weakened movement against varying resistance, excess fatigability with use, and incoordination. How these factors result in any additional limitation of motion or otherwise impair functioning of the joint should be described; b. whether the Veteran's low back disability is manifested by muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis as well as by ankylosis should be indicated; . c. the number of weeks of incapacitating episodes the Veteran had should be described; d. whether the Veteran has radiculopathy should be indicated and, if so, whether his adverse symptomatology is best characterized as incomplete and mild, moderate, moderate-severe, or severe or complete paralysis of the nerve; e. whether the Veteran's adverse symptomatology includes objective evidence of a bowel or urinary disability should be indicated, and the extent of that impairment described. 5. After undertaking any other needed development, readjudicate the claim, considering the evidence added to the record after the April 2010 statement of the case, and whether separate evaluations are warranted for any radiculopathy or bowel or bladder impairment. If any benefit sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case. A reasonable period of time should be allowed for response before the appeal is returned to the Board. 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 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). _________________________________________________ MICHAEL E. KILCOYNE 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).