Citation Nr: 1314288 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 09-00 071 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia THE ISSUE Entitlement to an evaluation in excess of 20 percent for lumbar strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from January 1986 to March 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 decision by the RO which granted an increased rating to 20 percent for the Veteran's lumbar strain. 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 contends that she has chronic pain and numbness radiating into her lower extremities, which she believes is related to her service-connected lumbar strain, and argues that the 20 percent evaluation currently assigned does not accurately reflect the severity of her low back disability. The evidentiary record shows that the Veteran has been treated by VA and by a private physical therapist for chronic back pain radiating into the lower extremities for several years. VA outpatient records from 2007 to the present note a history of radiculopathy and sacroiliitis, and back pain with radicular symptoms. Similarly, the diagnoses on the private physical therapy notes from December 2006 to February 2009 include the diagnosis of radiculopathy. VA MRI studies in October 2006 and January 2009 revealed left foraminal disc protrusion at L3-4 compressing the existing L3 nerve root, and a small volume central disc protrusion at the L4-5 level. When examined by VA in September 2009, the VA examiner noted that the Veteran's low back problems began after a motor vehicle accident in service, and commented that a significant back trauma could lead to degenerative disc disease many years later due to disc dehydration. However, he did not have the claims file to review and could not comment on whether there was a relationship between the Veteran's symptoms and her service-connected back injury. He indicated there was no evidence of radiculopathy. In an addendum report, dated in April 2010, the VA examiner reported that he reviewed the claims file and found no objective clinical evidence of lumbosacral radiculopathy. He also noted that a VA EMG study in 2005 was unremarkable. Concerning the 2005 EMG report, the evidence of record indicated that the study was undertaken to determine the nature and etiology of the Veteran's chronic, bilateral below the knee leg pain for possible restless leg syndrome. The evidence of record at that time did not show any complaints or symptoms of radiating low back pain into the Veteran's lower extremities. Thus, the Board has some reservations as to the relevance of that study with respect to the Veteran's current symptoms. Given the conflicting and contradictory evidence concerning the nature and etiology of the Veteran's lower extremity symptoms, and the fact that the most recent VA examination was conducted nearly four years ago, the Board finds that a more current, comprehensive examination should be undertaken prior to appellate review. Accordingly, the case is REMANDED for the following action: 1. The AMC should take appropriate steps to contact the Veteran and obtain the names and addresses of all medical care providers who treated her for her low back disability since December 2008 - the most recent VA treatment report of record. After securing the necessary releases, the AMC should attempt to obtain copies of all medical records from the identified treatment sources, and associate them with the claims folder. All attempts to procure records should be documented in the file, and the Veteran should be notified of unsuccessful efforts in this regard. 2. The Veteran should be afforded VA orthopedic and neurological examinations to determine the current severity of her low back disability and the etiology of her lower extremity symptoms. All indicated tests and studies are to be performed, including an EMG/NCV study. The claims folder must be made available to the examiners for review, and a notation to the effect that this record review took place should be included in the report. The examiners should provide a response to each of the following questions/instructions. The orthopedic examiner should respond to the following: a) Note any limitations of motion in the thoracolumbar spine. b) Indicate whether the thoracolumbar spine exhibits weakened movement, excess fatigability, or incoordination. If feasible, these determinations should be expressed in terms of additional range of motion loss or favorable or unfavorable ankylosis due to any excess fatigability, weakened movement or incoordination. c) Lastly, the examiner should express an opinion on whether pain of the thoracolumbar spine could significantly limit functional ability during flare-ups or when the spine is used repeatedly over a period of time. These determinations should also, if feasible, be portrayed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. The neurological examiner should identify any neurological complaints or findings attributable to the service-connected lumbar spine disability. If the Veteran has neurological symptoms associated with her low back disability, the examiner should provide a written discussion of the degree of any residual weakness or sensory disturbance, and how it impacts on motor function of the lumbar spine. The examiner should also: a) Indicate whether the Veteran has recurring attacks of intervertebral disc syndrome referable to the lumbar spine disability. If so, indicate the degree of intermittent relief he experiences between those attacks. b) The examiner should note whether any intervertebral disc syndrome that may be present in the thoracolumbar spine results in incapacitating episodes, and indicate the total duration of any episodes for each spinal segment. 3. After the requested development has been completed, the AMC should readjudicate the claim. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The Veteran 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). _________________________________________________ WAYNE M. BRAEUER 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).