Citation Nr: 1313285 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 11-32 799 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for lumbar spine degenerative arthritis with spondylosis and bilateral facet disease, rated 10 percent prior to June 30, 2011, and 20 percent from June 30, 2011. 2. Entitlement to service connection for a left arm disorder. 3. Entitlement to service connection for left patellofemoral knee syndrome with enthesophyte. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from October 1979 to September 1990 with several subsequent years of service in the Army Reserve. These matters are before the Board of Veterans' Appeals (BVA or Board) on appeal from an August 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a June 2011 rating decision, a temporary total evaluation was assigned to the Veteran's lumbar spine disability for a post-surgical convalescent period from October 20, 2010 to February 1, 2011. A 10 percent rating was then assigned, effective February 1, 2011. In a May 2012 rating decision, the RO granted a 20 percent rating, effective June 30, 2011. As the temporary total evaluation is the maximum benefit allowed, the Board will not address that period or consider evidence pertinent to that period in the decision below. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Board determines that a remand is necessary to allow for further development of the claims. With regard to the Veteran's lumbar spine disability, the Board is unclear as to the exact nature of the service-connected disability. In a January 1994 rating decision, service connection was granted for sacroiliitis. In a June 2009 proposed rating determination under the Disability Evaluation System, the Board recharacterized the disability as lumbar spine degenerative arthritis with spondylosis and bilateral facet disease (formerly rated as sacroiliitis and also claimed as lumbar radiculopathy and herniated disc). An August 2009 rating decision denied a rating in excess of 10 percent for that disability. Thereafter, in a May 2012 rating decision, the RO granted a 20 percent rating, effective June 30, 2011. Upon reviewing the above, the Board finds that the nature of the disability for which the Veteran is in receipt of service-connected benefits is unclear. The Board observes that the initially rated disability was sacroiliitis, defined as arthritis of the sacroiliac joint. Dorland's Illustrated Medical Dictionary, p. 1687 (30th ed. 2003). However, as indicated, the disability was also claimed as lumbar radiculopathy with herniated disc, which is a different disability from sacroiliitis or arthritis of the spine. Consequently, the Board requires clarification as to the nature of the Veteran's lumbar spine disability, to include whether lumbar radiculopathy is already considered part of the service-connected disability rated by the RO. . The Board observes that Note 1 to the General Rating Formula for Diseases and Injuries of the Spine states that any objective neurological abnormalities associated with the spine disability, including, but not limited to, bowel or bladder impairment, are to be evaluated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5343. The Board notes that the March 2009 QTC examination report specifically states that there was no pathology of lumbar radiculopathy and no diagnosis. However, this finding is contradicted by multiple treatment records, both in-service and post-service. The April 2009 Medical Evaluation Board supplied a diagnosis of bilateral L5-S1 radiculopathy confirmed by EMG. VA treatment records from 2008 and 2009 continue a diagnosis of radiculopathy. November 2007 and December 2008 private evaluations found a positive straight leg raise bilaterally. The June 2011 VA examination also noted a positive Lasegue test (straight leg raise) on both sides. Additionally, the right lower extremity exhibited a loss of strength when compared with the left. Thus, there is conflicting evidence as to whether the Veteran has radiculopathy that is associated with his service-connected lumbar spine disability. Accordingly, if, in fact, it is determined that service connection has not been previously established for lumbar radiculopathy as opposed to "also claimed as lumbar radiculopathy and herniated disc," a clinical opinion as to whether the Veteran's lumbar radiculopathy is related to his service-connected lumbar spine degenerative arthritis should be obtained. As a rating for neurological manifestations of a service-connected spine disability is part of the maximum benefit the Veteran may obtain for his lumbar spine disability, the ratings already assigned for the lumbar spine degenerative arthritis with spondylosis and bilateral facet disease are inextricably intertwined with question regarding lumbar radiculopathy and must also be remanded. See Smith v. Gober, 236 F.3d 1370, 1372 (Fed. Cir. 2001) (where facts underlying separate claims are "intimately connected" interest of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v Derwinski, 1 Vet. App. 180, 183 (1990) (where a decision on one issue would have a significant impact upon another, the claims are "inextricably intertwined."); see also Gurley v. Nicholson, 20 Vet. App 573 (2007) (recognizing that claims may be remanded to be adjudicated with other related claims as a matter of judicial economy); but see Kellar v. Brown, 6 Vet. App. 157 (1994). As for the Veteran's left arm and left knee claims, the Board observes that for VA compensation purposes, service includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury, incurred or aggravated in the line of duty, and any period of inactive duty for training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24); § 38 C.F.R. § 3.6. Active duty is full time duty in the Armed Forces other than ACDUTRA. Id. With regard to National Guard and Reserve service, ACDUTRA is full time duty performed under 32 U.S.C. §§ 316, 502, 503, 504, or 505 or the prior corresponding provisions of law. Id. INACDUTRA is duty other than full-time duty performed under the same provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505 or the prior corresponding provisions of law. Id. The Board notes that in February 2008, the Veteran was put on profile for lower back pain and left knee pain. The April 2009 Medical Evaluation Board notes that the Veteran had a history of bilateral knee pain and intermittent numbness of the left forearm and fingers. Thus, while the Veteran's active duty service treatment records may not reflect left knee or left arm disabilities, there is evidence that the Veteran developed such disorders during a period of qualified Reserve service or as a result of injury during such service. While there are a few copies of physical examinations from the Veteran's Reserve service in the claims file, as well as service treatment notes from the 1980s, his complete service treatment records are not of record. Further, the service personnel records are incomplete in that his actual dates of ACDUTRA and INACDUTRA cannot be ascertained. Therefore, the Board determines that the Veteran's complete service personnel and treatment records should be obtained. Additionally, as there is evidence of a left knee injury or disability incurred during Reserve service, the Board should be scheduled for a VA examination to assess the existence and etiology of a left knee disability. As for the left arm, the Board observes that the Veteran has not been afforded a VA examination to specifically assess the existence and etiology of a left arm disability. In December 2009, a VA examination of the cervical spine was conducted. The VA examiner noted there was prickling paresthesia in the supply area of the ulnar nerve, thereby suggesting a neurological disability of the left arm. There was suspicion of sulcus ulnaris syndrome on the left. However, there was no definitive diagnosis provided or opinion offered as to whether the Veteran had a disability of the left arm that was etiologically related to his military service or to his cervical spine disability. Therefore, the Board remands the claim so that a VA examination of the left arm may be scheduled. Accordingly, the case is REMANDED for the following action: 1. Request verification of the Veteran's specific periods of ACDUTRA and INACDUTRA, as well as the Veteran's complete service personnel records and service treatment records, from the Veteran's Army Reserve Unit and the National Personnel Records Center and any other appropriate sources. All requests and responses, positive and negative, must be documented in the claims file. 2. Assess the nature of the Veteran's service-connected lumbar spine disability. If it is found that the disability already service-connected does not include lumbar radiculopathy and herniated disc, it must be determined if the Veteran has lumbar radiculopathy and herniated disc that is, in fact, part of his service-connected disability. To do so, schedule the Veteran for a VA spine examination to determine the current nature and severity of his service-connected lumbar spine disorder. The claims folder must be provided to the examiner in conjunction with the examination, including Virtual VA records. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies, to include those required to objectively document neurologic manifestations of the Veteran's service-connected disorders must be accomplished. The examiner must identify all disorders of the Veteran's spine, e.g., arthritis, herniated disc, that are present and part of the service-connected disability. Additionally, the examiner must document any neurological manifestations of the Veteran's service-connected lumbar spine disability. For any diagnosis other than lumbar spine degenerative arthritis with spondylosis and bilateral facet disease, i.e lumbar radiculopathy and herniated disc, the examiner should opine as to whether it is at least as likely as not that the diagnosed disorder (to include lumbar radiculopathy and herniated disc) is a manifestation of the service-connected lumbar spine disability. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A rationale for any opinion advanced must be provided. The examiner should also state what sources were consulted in forming the opinion. 3. Schedule the Veteran for a VA examination to assess the etiology of his left knee disorder. The claims file should be made available for review, and the examination report should reflect that such review occurred, including Virtual VA records. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. All tests or studies necessary to make these determinations must be conducted. Upon a review of the record and examination of the Veteran, the examiner should respond to the following: Is it at least as likely as not that the Veteran has a left knee disorder that is causally or etiologically a result of his military service, including active duty and any period of ACDUTRA or INACDUTRA? The opinion offered must be reconciled with the April 2009 Medical Evaluation Board note that the Veteran had a history of bilateral knee pain. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A rationale for any opinion advanced must be provided. The examiner should also state what sources were consulted in forming the opinion. 4. Schedule the Veteran for a VA examination to assess the existence and etiology of his left arm disorder. The claims file should be made available for review, and the examination report should reflect that such review occurred, including Virtual VA records. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. All pertinent symptomatology and findings must be reported in detail. All tests or studies necessary to make these determinations must be conducted. Upon a review of the record and examination of the Veteran, the examiner should respond to the following: a. Is it at least as likely as not that the Veteran has a left arm disorder that is causally or etiologically a result of his military service, including active duty and any period of ACDUTRA or INACDUTRA? The opinion offered must be reconciled with the April 2009 Medical Evaluation Board note that the Veteran had a history of intermittent numbness of the left forearm and fingers. b. Is it at least as likely as not that the Veteran has a left arm disorder that was caused or aggravated beyond normal progression by his service-connected cervical spine disability? (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A rationale for any opinion advanced must be provided. The examiner should also state what sources were consulted in forming the opinion. 5. After completing the above actions and any other development deemed necessary, readjudicate the Veteran's claims, to include a determination as to whether a rating is warranted for lumbar radiculopathy at any time during the appeal period, from February 2, 2008 forward. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). See Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125, 126 (1997); see also Swanson v. West, 12 Vet. App. 442 (1999) (VA must consider all the evidence of record, including that which predated a decision on the same matter, to determine when an ascertainable increase occurred in the rated disability); VAOGCPREC 12-98. If the benefit sought remains denied, provide a supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals