Citation Nr: 1310503 Decision Date: 03/29/13 Archive Date: 04/09/13 DOCKET NO. 09-07 021A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the cervical spine, to include as secondary to service-connected degenerative changes of the lumbar spine status, post fracture of L3-4. 2. Entitlement to a disability rating in excess of 20 percent for degenerative changes of the lumbar spine status, post fracture of L3-4. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. C. Dale, Counsel INTRODUCTION The Veteran had active military service from March 1951 to November 1957 and from January 1958 to April 1977. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the benefits sought on appeal. In October 2011 and November 2012, the Board remanded these claims to the RO via the Appeals Management Center (AMC), in Washington, DC, for further development. The claims have now been returned to the Board. A review of the Virtual VA paperless claims processing system shows that VA treatment records through October 2012 are of record. The RO considered these updated VA treatment records in the February 2013 Supplemental Statement of the Case. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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 Board finds that an additional medical opinion for the claimed neck disability and an examination for the low back disability are necessary to fulfill VA's duty to assist in developing these claims. For the claimed neck disability, the Veteran contends that it is secondary to his service connected low back disability. He underwent a VA examination in October 2011, but the examiner did not consider whether his low back disability aggravated his claimed neck disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes the effort to provide an examination for a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided); Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008) (VA must consider the possible theories of entitlement raised by the claimant or the evidence of record). Under 38 C.F.R. § 3.310(b), secondary service connection may be warranted for disabilities aggravated by a service connected disability. Briefly, the Board observes that the Veteran filed his claim prior to October 10, 2006, and the revised criteria of establishing a baseline prior to aggravation is not applicable as it has retroactive effects. Allen v. Brown, 7 Vet. App. 439 (1995); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008);71 Fed. Reg. 52,744 -52,747 (2006) (codified at 38 C.F.R. § 3.310 (2012)); VAOPGCPREC 7-2003. An addendum medical opinion, as described below, is necessary to address the aggravation theory of entitlement. Barr, 21 Vet. App. at 311; Robinson, 21 Vet. App. at 553; 38 C.F.R. §§ 3.159(c)(4), 3.310(b). Regarding the low back disability, it is rated based upon limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5242. VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment, in rating such disability. The December 2010 VA examination report indicates that the Veteran reported having several flare ups every few weeks and had objective evidence of pain upon active and repetitive motion. It is unclear as to whether the examiner considered functional impairment from pain, flare-ups, weakened movement, excess fatigability, or incoordination. He did not specify at what degree the pain began, nor did he estimate motion loss during repetitive motion. The Unites States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any flare-ups or pain, in addition to weakened movement, excess fatigability and incoordination. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). Although the examiner indicated that there was no additional limitation following three repetitions of range of motion testing, this does not fully address the questions at issue with regard to the impact of pain on the Veteran's lumbar spine movement. VA regulations provide that where an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. 38 C.F.R. § 4.2 (2012); see 38 C.F.R. § 19.9 (2012). Where the Board makes a decision based on an examination report which does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Another examination addressing functional impairment, as described below, is necessary. Ongoing VA treatment records should also be obtained. Bell v. Derwinski, 2 Vet. App. 611 (1992). 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) (2012). Expedited handling is requested.) 1. Obtain ongoing VA treatment records for the Veteran's neck and low back disabilities after September 2012. 2. After any additional treatment records have been associated with the claims folder or Virtual VA efolder, contact the October 2011 VA cervical spine examiner or if he is unavailable, a suitably qualified healthcare provider. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should answer the following question as definitely as possible: Is it at least as likely as not (50 percent probability or more) that the Veteran's current neck disability has been aggravated (made worse as shown by comparing the current disability to medical evidence created prior to any aggravation) by his lumbar spine disability? The examiner must provide a complete rationale for any opinion given. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, the examiner must provide a reason for doing so. 3. After any additional treatment records have been associated with the claims folder or Virtual VA efolder, schedule the Veteran to undergo a VA examination to determine the nature and severity of his lumbar spine disability. The claims folder, including this remand and any relevant records contained in the Virtual VA system, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. All tests deemed necessary should be conducted and the results reported in detail. The examiner should provide the lumbar spine range of motion in degrees, to include the degree at which pain begins. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. In this regard, the examiner should estimate the extent of any additional functional limitation manifested during periods of flare-up. Such additional limitation should be expressed in degrees of motion lost during flare-ups. The Veteran's reported symptoms should be considered in making this determination. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examiner should consider the Veteran's complaints of lower extremity numbness and determine whether there is any neurological impairment in either lower extremity related to the service connected lumbar spine disability. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. 4. After completing all development required to adjudicate the Veteran's claims, re-adjudicate these issues. If the benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board. 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). _________________________________________________ J. A. MARKEY 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).