Citation Nr: 1308577 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 09-32 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a rating in excess of 20 percent for lumbosacral strain. REPRESENTATION Appellant represented by: Delaware Commission of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1983 to November 1985 and from April 1989 to June 1991 (and had some inactive service in the Reserves in the interim). This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Wilmington, Delaware Regional Office (RO), which continued a 20 percent rating for the Veteran's lumbosacral strain. In November 2012 a Travel Board hearing was held before the undersigned; a transcript is associated with the record. The case is in the jurisdiction of the Philadelphia RO. The appeal is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action on his part is required. REMAND The Veteran's service-connected low back disability is characterized as lumbosacral strain. The record shows that he also has a diagnosis of severe lumbosacral disc disease. There has been no formal determination (rating decision) as to whether or not the disc disease is considered part and parcel of the service-connected low back disability, or is a separate and distinct entity due to unrelated cause(s). If it is a separate and distinct entity, this matter would present a medical question of what symptoms and impairment are attributable to the service-connected lumbosacral strain and what symptoms/impairment are attributable solely to the non-service-connected disc disease. Furthermore, it is not clear whether or not there are neurological symptoms associated with his service-connected low back disability. In June 2012, the VA examiner indicated there were none. However, VA treatment records found in Virtual VA (incidentally, not all of which are addressed in a supplemental statement of the case (SSOC)), show that the Veteran has been seen with complaints of sciatica. The June 2012 examination opinion does not reflect that these treatment records were considered by the examiner (While the examiner noted that the Veteran's claims file and CPRS records were reviewed, there is no mention of the Veteran's reports of sciatica and his outpatient visits). Consequently, the examination report is inadequate for rating purposes. The record shows that the Veteran receives ongoing VA treatment for the disability at issue. Updated records of such treatment are pertinent evidence in the matter at hand, are constructively of record; and must be secured. Accordingly, the case is REMANDED for the following: 1. The Veteran shall identify the providers of any (and all) evaluation and/or treatment he has received for his low back disability since August 2012, and to provide any releases needed for VA to secure records from any private providers identified. The RO should secure for the record copies of the complete clinical records from all sources identified. 2. The RO should thereafter arrange for an orthopedic examination of the Veteran to determine the nature, etiology, and current severity of his low back disability. The Veteran's claims folder must be reviewed by the examiner in conjunction with the examination. Following a review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following: a) Please identify, by medical diagnosis, each low back disability entity found. b) For any diagnosed entity other than lumbosacral strain (e.g., intervertebral disc syndrome), please indicate whether such is part and parcel of/due to/ evolved from the service-connected lumbosacral strain or whether it is a separate and distinct entity, with separate etiology and symptoms. Please cite to the factual data that support the conclusion. c) Please identify all pathology, symptoms, and associated impairment attributable to the Veteran's lumbosacral strain (and any related pathology). Specifically, please indicate whether or not the disability has any neurological manifestations and if so, describe in detail the nature, severity, and related impairment of such manifestations. If it is determined that there are no neurological manifestations, please reconcile that finding with the treatment records that show that the Veteran is seen with complaints of sciatica. d) If any symptoms or impairment are determined to be attributable solely to pathology that is unrelated to the service-connected lumbosacral strain, please identify such symptoms and impairment. d) If intervertebral disc disease is found to be part and parcel of the Veteran's service-connected low back disability, please indicate whether or not the Veteran has had any incapacitating episodes of such [bedrest on physician's orders] and if so note the frequency and duration of such episodes. 4. The RO should then review the record and readjudicate the claim (addressing first the threshold matter of whether or not the disc pathology reported is part and parcel of the service-connected entity)(If not, the Veteran must be so advised). If the benefit sought remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. 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 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). _________________________________________________ GEORGE R. SENYK 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).