Citation Nr: 1312914 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 10-36 727 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for lumbar spine degenerative disc disease. 2. Entitlement to an initial compensable rating for dermatitis of the upper eyelids. 3. Entitlement to an initial compensable rating for allergic rhinitis. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty from May 18, 2004 to December 9, 2008, including combat service in Iraq. This appeal to the Board of Veterans' Appeals (Board) arises from a January 2009 rating decision of the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans' Affairs (VA), which in pertinent part, granted service connection for degenerative disc disease of the lumbar spine, assigning a 10 percent rating; for irritant induced dermatitis of the upper eyelids, assigning a noncompensable rating; and for allergic rhinitis, assigning a noncompensable rating, all effective from December 10, 2008. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. The Veteran last received a VA examination to assess the severity of his service-connected low back disability in May 2010. Subsequent April and May 2012 VA treatment records show that the Veteran reported that his back pain had gotten progressively worse over the past year, resulting in him having to use great care in how he moved and walked. He also had experienced weakness, numbness and tingling in the legs. During a May 2012 emergency room visit, after reporting left lower extremity pain, numbness and edema, he was diagnosed with sciatica. Given this medical evidence of worsening low back disability since May 2010, a contemporaneous VA low back examination, with specific consideration of the extent of any associated neurological impairment of the lower extremities, is necessary prior to final adjudications of this claim. Regarding the claim for eyelid disability, additional evidence, in the form of VA treatment records for the period from September 2011 to May 2012, were received by the RO into the Virtual VA system in May 2012, subsequent to the July 2010 statement of the case (SOC) and prior to certification of the appeal and transfer of the claims file to the Board in October 2012. These records include a November 2011 VA emergency room note showing that the Veteran was reporting an allergic reaction with itching of both eyes, which was similar to the eye symptomatology he experienced in service. Thus, the records are relevant to the Veteran's claim for increase for eyelid dermatitis. In situations like this, when the additional evidence is relevant and not duplicative, the RO/AMC must furnish a supplemental statement of the case as provided in 38 C.F.R. § 19.31. In this regard, the waiver process of 38 C.F.R. § 20.1304(c) applies only to evidence submitted following certification of the appeal and transfer of records to the Board. There is no similar waiver process in the regulations for evidence received prior to certification and transfer of records to the Board. Thus, the Veteran's claim must be remanded for RO/AMC consideration of the evidence added to the record since the July 2010 SOC and issuance of a supplemental SOC (SSOC) in compliance with 38 C.F.R. § 19.31. Consequently, as this claim must be remanded anyway, the Veteran should be scheduled for a new VA examination to assess the current severity of the eyelid dermatitis. Additionally, in May 2010, the Veteran was noted to have failed to report for a VA medical examination to assess the current severity of his service-connected allergic rhinitis. In subsequent October 2012 argument, the Veteran's representative requested that the Veteran be provided with another examination for this purpose, indicating that he was more than willing to appear for such an examination. Given that the Veteran did report for a separate back and skin examination in May 2010; given that he has also reported for VA examinations prior to, and subsequent to May 2010; and given that the case is already being remanded to provide him with other VA medical examinations, the Board finds it reasonable for another examination to be provided to assess the current severity of the allergic rhinitis. Prior to arranging for the above examinations, all available VA records of treatment or evaluation for low back disability, neurological impairment of the lower extremities, allergic rhinitis and eyelid dermatitis from May 2012 to the present and from July 2010 to September 2011 should be obtained. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain all available VA records of treatment and evaluation of low back disability, neurological impairment of the lower extremities, allergic rhinitis and eyelid dermatitis, dated from July 2010 to September 2011 and from May 2012 forward. 2. After all available records have been associated with the claims file, schedule the Veteran for VA orthopedic and neurological examinations. The claims file, including a complete copy of this remand, must be made available to and reviewed by the examiner(s). The examinations should include any diagnostic testing or evaluation deemed necessary. The examiner(s) should identify any orthopedic and neurological findings related to the service-connected disability and fully describe the extent and severity of these symptoms. The orthopedic examiner should conduct range of motion testing of the lumbar spine. Any pain, weakened movement, excess fatigability or incoordination on movement should be noted, and the examiner should address whether there is likely to be any additional range of motion loss due to: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; and/or (4) incoordination. The examiner should describe whether pain significantly limits functional ability during flare-ups or during repetitive use. All limitation of function must be identified. The orthopedic examiner should also document the number of weeks, if any, during the past 12 months, that the Veteran has had "incapacitating episodes," defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." The neurological examiner should determine whether the Veteran has radiculopathy or other neurological impairment of the left and/or right lower extremities, associated with the service connected lumbar degenerative disc disease. In making this determination, the examiner should consider past documentation of potential radicular symptomatology, including a mild sensory deficit along the lateral aspect of the left thigh noted during a December 2008 VA examination; radiculopathy down the left leg noted during a February 2009 VA primary care visit; radiculopathy down both legs noted during a January 2010 VA primary care visit; complaints of radiation of pain and paresthesias of the left leg noted during the May 2010 VA examination and swelling, and numbness and pain of the left leg and a diagnosis of sciatica noted during a May 2012 VA emergency room visit. With regard to any neurological disability related to the service-connected disability, the specific nerve(s) affected should be specified, together with the degree of impairment resulting from this neurological disability. The examiner(s) must provide a comprehensive report(s) including complete rationales for all opinions and conclusions reached. 3. Schedule the Veteran for a VA examination(s) to assess the current severity of the service connected allergic rhinitis and eyelid dermatitis. The claims file, including a complete copy of this remand, must be made available to and reviewed by the examiner(s). The examination(s) should include any diagnostic testing or evaluation deemed necessary. If possible, attempts should be made to schedule the examination(s) when the disabilities are symptomatic. In evaluating the eyelid disability, the examiner should specifically consider prior VA medical records, including the December 2008 VA examination report, a February 2009 VA dermatological finding of eyelid erythema with slight scale, a March 2009 VA non-formulary consult indicating that a non-steroid alternative therapy for the eyelid dermatitis was being sought, a June 2009 allergy consultation report with diagnostic impression of history of allergic conjunctivitis; a February 2010 optometric diagnosis of allergic conjunctivitis and the aforementioned November 2011 VA emergency room note showing the reported allergic reaction with itching of both eyes. In addition to assessing the level of eyelid dermatitis, the examiner should indicate, based on the review of the claims file and any examination findings, whether the Veteran has chronic intermittent conjunctivitis. If, so, the examiner should comment whether this disability is related to the service-connected allergic rhinitis and/or the service-connected eyelid dermatitis. Regarding the allergic rhinitis, the examiner should assess whether there are any polyps present. The examiner should also comment on the extent of obstruction of the nasal passages, on a percentage basis. The examiner(s) must provide a comprehensive report including complete rationales for all opinions and conclusions reached. 4. Read all of the medical examination reports obtained to ensure that the remand directives have been accomplished, and return the case to the appropriate examiner if all questions posed are not answered. 5. Finally, readjudicate the claims on appeal, with consideration of the additional evidence received since the July 2010 SOC. If any claim remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 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). These claims 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). _________________________________________________ P. M. DILORENZO 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).