Citation Nr: 1314303 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 09-37 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial compensable disability rating for thoracic and lumbar degenerative changes with muscle strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from September 1986 to March 2007. This matter is before the Board of Veterans' Appeals (Board) of the Department of Veterans Affairs (VA) on appeal from a January 2008 rating determination by the above Regional Office (RO). 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 The Veteran contends that his service-connected thoracic and lumbar spine disability is more disabling than the current noncompensable evaluation reflects. Basically, he asserts that his disability has worsened since he was last examined by VA in November 2007. In support of this contention, he has submitted private outpatient MRI results from January 2009, which appear to show some progression of the disc disease in the lower back-specifically annular bulge at L4-5 with mild spinal stenosis. Unfortunately, there is little else in the claims file which adequately describes the current nature and extent of the Veteran's thoracic lumbar spine disability. As noted, review of the claims folder reveals that he has not been afforded a pertinent VA examination since 2007, more than 5 years ago. Indeed, the principal purpose of that examination was to determine the etiology of any diagnosed thoracic and lumbar spine disability-in other words to determine whether service connection was warranted. That examination was not performed with the purpose of providing the findings required to accurately rate the disorder. As there may have been significant changes in the service-connected thoracolumbar spine disability since the previous examination, and to ensure that the Veteran's own complaints are sufficiently considered by a VA examiner, the Board finds that a more contemporaneous examination is needed. Allday v. Brown, 7 Vet. App. 517, 526 (1995) [where the record does not adequately reveal current state of claimant's disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment since previous evaluation]; Green v. Derwinski, 1 Vet. App. 121, 124 (1991) [VA has a duty to provide a veteran with a thorough and contemporaneous medical evaluation]; & Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered contemporaneous examination of the veteran because a 23-month old evaluation was too remote in time to adequately support the decision in an appeal for an increased rating). The examination conducted pursuant to this Remand should include a review of the Veteran's claims file and past clinical history, with particular attention to the severity of present symptomatology, as well as any significant pertinent interval medical history since his last VA examination in 2007. With regard to the thoracic and lumbar spine disorder, the examiner should be asked to render findings as to extent of functional loss due to pain and/or weakness, to include with repeated use and during flare-ups. 38 U.S.C.A. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). Also on remand, ongoing medical records should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). In this regard, the Board notes that the most recent record of any outpatient treatment that the Veteran has undergone (and that is included in his claims folder or Virtual VA folder) is dated in 2007. Finally, the Board observes that the Veteran is appealing the original assignment of the disability rating for his service-connected thoracic and lumbar spine disability following the award of service connection. In such a case, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings-that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Thus, the disability evaluation must be considered from March 22, 2007 to the present. Accordingly, the case is REMANDED for the following action: 1. After procuring the appropriate release of information forms where necessary, obtain records of any recent treatment for, or evaluation of, the service-connected thoracolumbar spine disability that the Veteran has undergone. The Board is particularly interested in any pertinent treatment that he may have received since November 2007. Document the attempts to obtain such records. If the AMC/RO is unable to obtain any pertinent evidence identified by the Veteran, so inform him and request that he obtain and submit it. If any records are unavailable, do not exist, or further attempts to obtain them would be futile, document this fact in the claims file. See 38 U.S.C.A. § 5103A(b). All such available documents should be associated with the claims folder or Virtual VA folder (as appropriate). 2. Then, schedule the Veteran for an appropriate VA examination to determine the current degree of severity of his thoracic and lumbar spine disability. The claims file must be made available to the examiner, and a notation to the effect that this record review took place should be included in the evaluation report. All indicated tests and studies, including X-rays, should be performed, and the examiner should review the results of any testing prior to completing the report. The examination report should include discussion of the Veteran's documented medical history and assertions. The examiner should set forth all examination findings, together with the rationale for the comments and opinions expressed. The examiner should specifically: a) conduct range of motion testing of the thoracolumbar spine (expressed in degrees, with standard ranges provided for comparison purposes). He/she should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or in coordination associated with the thoracolumbar spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. The examiner should also render an opinion, based upon best medical judgment, as to whether, and to what extent, the Veteran experiences any additional functional loss (beyond that which is demonstrated clinically) due to pain and/or any of the other symptoms of the service-connected thoracolumbar spine disability noted above during flare-ups and/or with repeated use. To the extent possible, the examiner should express such functional loss in terms of additional degrees of limited motion. b) discuss the presence (including degree) or absence of muscle spasm, guarding, localized tenderness, or vertebral body fracture with loss of 50 percent or more of the height, and indicate whether any such symptoms are severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis-as well as the presence (including degree) or absence of ankylosis (favorable or unfavorable) of the Veteran's lumbosacral spine or entire spine. c) describe all neurological manifestations and symptomatology and offer an opinion as to whether the Veteran has any separately ratable neurological disability (in addition to orthopedic disability) as a manifestation of the service-connected thoracolumbar degenerative changes with muscle strain. The examiner should discuss the severity of any radiculopathy or neuropathy found to be present in the lower extremities and indicate whether the degree of impairment is best characterized as mild, moderate, moderately severe, or severe. d) provide findings responsive to the criteria for rating intervertebral disc syndrome (IDS) and specifically, comment on the existence and frequency of any of the Veteran's incapacitating episodes (i.e., a period of acute signs and symptoms due to IDS that requires bed rest prescribed by a physician and treatment by a physician) in the last 12-month period. The examiner should also indicate the effect the service-connected thoracic and lumbar degenerative changes with muscle strain has, if any, on the Veteran's employment and daily life. Specifically, the examiner should render an opinion as to whether the disability causes marked interference with employment, or the need for frequent periods of hospitalization or otherwise preclude(s) the Veteran from engaging in substantially gainful employment. The conclusions of the examiner should reflect review of the claims folder, and the discussion of pertinent evidence. If he/she feels that the requested opinions cannot be rendered without resorting to speculation, he/she should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts), by a deficiency in the record (i.e. additional facts are required), or by the examiner himself/herself (because he/she does not have the needed knowledge or training). 4. After completing the requested action, and any additional notification and/or development deemed warranted, readjudicate the issue of entitlement to an initial compensable disability rating for the service-connected thoracic and lumbar degenerative changes with muscle strain. If the benefit sought on appeal remains denied, furnish the Veteran and his representative an appropriate supplemental statement of the case and give them an appropriate time period in which to respond. 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). _________________________________________________ JONATHAN B. KRAMER 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).