Citation Nr: 1314083 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 10-49 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUE Entitlement to an initial evaluation in excess of 40 percent disabling for degenerative osteoarthritis and disc disease of the thoracic and lumbar spine (back disability). REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Esq. ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1956 to April 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas that granted service connection for a back disability and assigned a 40 percent disability rating, effective October 2, 2001. 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 Veteran's service-connected back disability is currently assigned a 40 percent disability rating under Diagnostic Code 5242, effective October 2, 2001. See 38 C.F.R. § 4.71a (2012). The Veteran seeks a higher initial rating. The Board notes that the criteria for rating spine disorders were amended in 2002 and 2003. See 67 Fed. Reg. 54345 (Aug. 22, 2002); 68 Fed. Reg. 51454-58 (Aug. 27, 2003); 69 Fed. Reg. 32449 (June 10, 2004). While the Board acknowledges that the Veteran's back disability is currently rated under the newer rating criteria in effect since September 26, 2003, the Board notes that for claims pending prior to the 2002 and 2003 amendments, as in the instant case, the Board may consider rating the claim under the old and new criteria, whichever is more favorable to the veteran, except that the new criteria may not be applied before their effective date. See VAOPGCPREC 3-2000; 38 U.S.C.A. § 5110(g) (West 2002). In that regard, the Board acknowledges that Diagnostic Code 5292, limitation of motion, lumbar spine, effective prior to September 26, 2003, provided a maximum 40 percent rating for severe limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2003). Even so, the Board acknowledges that Diagnostic Code 5293, intervertebral disc syndrome (IVDS), effective prior to September 23, 2002, provided a higher 60 percent rating for pronounced IVDS. Effective September 23, 2002, Diagnostic Code 5293 was amended, and later renumbered effective September 26, 2003 as Diagnostic Code 5243. 67 Fed. Reg. 54,345 (August 22, 2002); 68 Fed. Reg. 51454. Diagnostic Code 5243, Formula for Rating IVDS, provides a higher 60 percent rating for incapacitating episodes having a total duration of at least six weeks. 38 C.F.R. § 4.71a (2012). The Board adds that Diagnostic Code 5293 contemplates limitation of motion, and, therefore, 38 C.F.R. §§ 4.40 and 4.45 (2012) should be considered when a veteran's disability is rated under this diagnostic code. See VAOPGCPREC 36-97; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). In this case, the Veteran was provided with a VA examination in July 2010. The examiner noted ranges of motion, several DeLuca factors were noted, and that the Veteran reported significant additional limitation of motion and functional impairment during flare-ups due to pain. The objective findings include a notation that the Veteran was not capable of performing multiple repetitions. The VA examiner did not, however, describe any additional functional loss due to pain, excess fatigability, weakened movement, or incoordination in terms of additional degrees of limitation of motion. In light of the above discussed regulations and case law and the fact that the July 2010 VA examiner noted that the Veteran's several DeLuca factors resulted in additional limitation of motion, but the actual degrees of additional loss of motion were not provided in the report, the Board finds that a remand is necessary to provide the Veteran with a new VA examination relating to his claim. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of any outstanding VA treatment records dated since November 2010 and associate them with the claims file. If no such records are available, this must be noted in the claims file. 2. Provide the Veteran with an opportunity to identify any outstanding private treatment records relating to his claim (such as any private treatment records from DR. R.H. dated since October 2010 or Preferred Medical Associates dated since June 2010); to that end, ask the Veteran to submit forms Form 21-4142. Requests must be made for any such records and, if no records are available upon request, this must be noted in the claims file. 3. Schedule the Veteran for a new VA spine examination, encompassing both orthopedic and neurological testing, to determine the symptoms and severity of his service-connected back disability. The examiner must review the claims file (including relevant Virtual VA records) in conjunction with the examination. All testing deemed necessary should be accomplished, at the discretion of the examiner. The examiner must conduct range of motion studies and also comment on: a) the degrees of motion at which pain is present; b) the extent of additional disability and functional loss (expressed in degrees of additional limitation of motion, if possible) due to pain, excess fatigability, weakened movement, and incoordination during flare-ups and after repetitive motion; c) the frequency and duration of any doctor-prescribed bedrest; and d) whether and to what extent there is ankylosis. Finally, the examiner must comment on whether there exists any associated objective neurological abnormalities (e.g., radiculopathy, neuropathy, or other neurological disabilities) of the lower extremities as secondary to the service-connected lumbosacral spine disorder. If so, the severity of such abnormalities must be described. If no abnormalities are found to be present, the examiner must so state clearly, taking into account any relevant earlier evidence of record. All opinions must be supported by a complete rationale in a typewritten report. 4. Then, readjudicate the matter on appeal. If the claim remains denied, the Veteran must be provided a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim must be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the this matter. 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). _________________________________________________ A. C. MACKENZIE Acting 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).