Citation Nr: 1313675 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 09-20 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial disability evaluation in excess of 10 percent for the Veteran's lumbar spine degenerative disc disease and strain, to include entitlement to a separate compensable disability evaluation for radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. She had active service from July 2001 to May 2005. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Waco, Texas, Regional Office (RO) which, in pertinent part, granted service connection for lumbar spine strain; assigned a 10 percent evaluation for that disability; and effectuated the award as of February 27, 2008. In March 2011, the Veteran was afforded a hearing before a Veterans Law Judge sitting at the RO. A hearing transcript was prepared and incorporated into the record. In August 2011, the Board remanded the Veteran's claim to the RO for additional action. In March 2013, the Veteran was informed that the Veterans Law Judge who had conducted her March 2011 hearing had retired and she therefore had the right to an additional hearing before a different Veterans Law Judge. In March 2013, the Veteran responded that she did not want an additional hearing. The Board observes that service connection has been established for "lumbar spine strain." However, such a characterization does not accurately reflect the Veteran's service-connected lumbar spine disability. The report of a July 2008 VA examination for compensation purposes states that the Veteran was diagnosed with lumbar spine degenerative disc disease "as the result of the [motor vehicle accident] she has in the service." A May 2009 magnetic resonance imaging study of the lumbar spine notes that the Veteran exhibited findings consistent with lumbosacral spine degenerative disc disease. The most recent VA examination shows a diagnosis of degenerative disc disease. Therefore, the Board has recharacterized the issue on appeal as an initial disability evaluation in excess of 10 percent for the Veteran's lumbar spine degenerative disc disease and strain, to include entitlement to a separate compensable disability evaluation for radiculopathy. The Board has reviewed both the Veteran's physical claims file and her "Virtual VA" file so as to insure a total review of the evidence. This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on her part. REMAND The Veteran asserts that an initial evaluation in excess of 10 percent is warranted for her lumbar spine disability as it is manifested by significant physical impairment which limits her daily activities and her ability to drive a car. The accredited representative advances that the October 2011 VA spinal examination afforded the Veteran is inadequate for rating purposes as it does not specifically report the lumbar spine functional limitation of motion due to pain. The October 2011 VA spinal examination was scheduled in accordance with the Board's Remand instructions. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In reviewing the examination report, the Board observes that it is internally inconsistent and did not identify the functional limitation of motion of the lumbar spine due to pain. The examination report states both that the Veteran was placed on bedrest due to lower lumbar pain for three days in February 2011 and she had no incapacitating episodes due to her degenerative disc disease. Further, while indicating that "there was objective evidence of pain on active [range of motion]," the examiner did not report at what degree of motion the pain commenced. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination which is accurate and fully descriptive. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Given the deficiencies in the October 2011 VA examination report, the Board finds that an additional VA spinal evaluation is necessary. VA should obtain all relevant VA and private clinical documentation which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). Clinical documentation dated after October 2011 is not of record. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that she provide information as to all treatment of her service-connected lumbar spine disability after October 2011, including the names and addresses of all health care providers whose records have not already been provided to VA. Upon receipt of the requested information and the appropriate releases, the RO should contact all identified health care providers and request that they forward copies of all pertinent records, including statements and treatment records, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Associate with the record any VA clinical documentation pertaining to the treatment of the Veteran not already of record, including that provided after October 2011. 3. Then schedule the Veteran for a VA orthopedic examination for compensation purposes to address the current nature and severity of her service-connected lumbar spine degenerative disc disease and strain. All indicated tests and studies, including range of motion studies, should be accomplished and the findings then reported in detail. The examiner should specifically state whether the Veteran exhibits any associated neurologic symptoms including radiculopathy. The examiner should identify the limitation of activity imposed by the Veteran's lumbar spine disability with a full description of the effect of the disability upon her ordinary activities. The examiner should fully describe any weakened movement, excess fatigability, and incoordination present. Determinations on whether the Veteran exhibits pain with use of her lumbar spine should be noted and described. If feasible, the determinations concerning pain, weakness and fatigability should be portrayed in terms of the degree of additional range of motion loss or ankylosis. If such a determination is not feasible, this should be stated for the record and the reasons provided. All relevant medical records, including the claims folder, should be made available to the examiner for review of pertinent documents therein. The examination report should specifically state that such a review was conducted. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. After the requested examinations have been completed, the examination report should be reviewed to ensure that it is in compliance with the directives of this remand. The reports should be returned to the examiner if it is deficient in any manner. 5. Thereafter, ensure that the development above has been completed in accordance with the remand instructions and undertake any other development action that is deemed warranted. Then readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, the Veteran and her accredited representative should be provided a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. An appropriate period of time should be allowed for response before the case is returned to the Board. 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 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 2002). ______________________________________________ K. J. ALIBRANDO 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).