Citation Nr: 1317427 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 09-44 055 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy of the left lower extremity. 2. Entitlement to an initial disability rating in excess of 10 percent for peripheral neuropathy of the right lower extremity. 3. Entitlement to an initial compensable disability rating for a low back strain. 4. Entitlement to an initial compensable disability rating for tendonitis of the right forearm and elbow. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1982 to September 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, as part of the Benefits Delivery at Discharge (BDD) program. The purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. 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 seeks increased ratings for his service-connected low back strain, bilateral peripheral neuropathy of the lower extremities, and tendonitis of the right forearm and elbow. Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The record shows that the Veteran last underwent a VA examination approximately four and 1/2 years ago, in September 2008, and in connection with his initial claims for service connection. Consequently, this examination was primarily focused on the etiology of the Veteran's disabilities, as opposed to the current severity of the now-service connected disabilities. Additionally, the Veteran has since received treatment for these disorders from the VA medical center in Omaha, Nebraska. Therefore, in light of this evidence indicating a possible worsening of symptoms, VA is required to afford him contemporaneous VA examinations to assess the current nature and severity of his disabilities. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). On remand, any additional private or VA treatment records dated after September 2009 should be obtained. See 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative and request that they provide sufficient information, and if necessary, authorization, to enable the AOJ to obtain any additional evidence pertinent to the claims on appeal. After securing the necessary authorizations for release of this information, the AOJ should seek to obtain copies of all records referred to by the Veteran not already of record, specifically from any private physicians or any relevant VA treatment records dated since September 2009. The AOJ must make at least two requests to any custodian of private records in an effort to obtain such records, unless it is made evident by the first request that a second request would be futile in obtaining such records. Any negative response should be in writing and associated with the claims file. 2. Notify the Veteran that he may submit lay statements from individuals that have first-hand knowledge of the nature, extent and severity of his peripheral neuropathy of the bilateral lower extremities, low back strain, and right forearm and elbow tendonitis. He should be provided a reasonable amount of time to submit this lay evidence. 3. After the above development is completed, schedule the Veteran for an appropriate VA examination to assess the current nature and severity of the service-connected low back strain, to include pain, weakness and numbness. The claims file must be made available and reviewed by the examiner. All tests deemed necessary by the examiner shall be performed and all findings reported in detail. a. It is requested that the examiner identify all symptoms and manifestations of the Veteran's low back disability. A comprehensive clinical history must be obtained. The examination report must include discussions of the Veteran's medical history and assertions. b. The examiner is specifically requested to provide range of motion findings for the affected parts. The examiner must determine whether the low back exhibits weakened movement, excess fatigability, or incoordination and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination, to include the Veteran's pain-free range of motion. c. The examiner must also express an opinion on whether pain could significantly limit functional ability during flare-ups or when the low back is moved repeatedly over a period of time. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups, i.e., pain-free motion during flare-ups. d. State whether the Veteran has intervertebral disc syndrome (IVDS). If so, state whether IVDS results in incapacitating episodes, and if so, the duration of the episodes over the past 12 months should be reported. The examiner should note that for VA purposes an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 4. The examiner should provide an opinion as to the current nature and severity of the Veteran's service connected bilateral peripheral neuropathy of the lower extremities. The examiner is asked to determine whether the Veteran's neurological symptomatology equates to "mild," "moderate," "moderately severe" or "severe," incomplete paralysis or complete paralysis of any affected nerve. The severity of each neurological sign and symptom should be reported and the severity of the symptoms should be assessed over the course of the appeal. 5. The Veteran should also be afforded an appropriate VA examination to assess the current nature and severity of the service-connected tendonitis of the right forearm and elbow, to include pain, weakness and numbness. The claims file must be made available and reviewed by the examiner. All tests deemed necessary by the examiner shall be performed and all findings reported in detail. to include pain, weakness and numbness. a. It is requested that the examiner identify all symptoms and manifestations of the Veteran's right forearm and elbow. A comprehensive clinical history must be obtained. The examination report must include discussions of the Veteran's medical history and assertions. b. The examiner is specifically requested to provide range of motion findings for the affected parts. The examiner must determine whether the right forearm and elbow exhibit weakened movement, excess fatigability, or incoordination and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination, to include the Veteran's pain-free range of motion. c. The examiner must also express an opinion on whether pain could significantly limit functional ability during flare-ups or when the right forearm and elbow are moved repeatedly over a period of time. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups, i.e., pain-free motion during flare-ups. A complete rationale for any opinions expressed and conclusions reached should be set forth in a legible report. 6. Thereafter, the Veteran's claims should be readjudicated. If any claim remains denied, the Veteran should be provided with a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board for further appellate review. 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). _________________________________________________ STEVEN D. REISS 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).