Citation Nr: 1317653 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 07-37 920A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the lumbosacral spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Stephen F. Sylvester, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to May 1995. This case originally came before the Board of Veterans' Appeals (Board) on appeal of October 2007 and August 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In a decision of November 2010, the Board dismissed the Veteran's appeal regarding the issue of entitlement to service connection for a right shoulder disability. At that same time, the Board remanded for additional development the issue of entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the lumbosacral spine. In a decision of June 2012, the Board denied entitlement to an evaluation in excess of 20 percent for service-connected degenerative disc disease of the lumbosacral spine. The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (Court) which, in a December 2012 Order, vacated the Board's June 2012 decision, and, in so doing, remanded the Veteran's case to the Board for action consistent with a December 2012 Joint Motion for Remand. The case is now, once more, before the Board for appellate review. For reasons which will become apparent, this appeal is being REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. VA will notify you if further action is required on your part. REMAND At the time of the aforementioned Joint Motion for Remand in December 2012, it as noted that the Board, at the time of its June 2012 decision, failed to provide sufficient consideration or discussion regarding whether a higher disability rating was warranted on the basis of additional functional loss during flare-ups, or due to weakness, fatigability, incoordination, or pain on movement of a joint, as delineated in DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995). According to the Court, while the Board, in its decision, generally cited to DeLuca, it failed to discuss whether the Veteran's degenerative disc disease of the lumbosacral spine resulted in any additional functional loss due to weakness, fatigability, incoordination, or pain on movement. This omission was deemed significant given the fact that, at the time of a VA examination in January 2011, the examiner indicated that the Veteran was employed full time with the United States Postal Service, but had missed five weeks of work over the course of the past 12 months due to back pain. The examiner additionally indicated that the Veteran's back pain caused problems with carrying and lifting, and prevented him from raking the yard and washing his car. Additionally noted by the examiner was a history of decreased motion, stiffness, weakness, spasm, and spine pain, with seasonal flare-ups of back pain due to cold weather lasting from 3 to 7 days. While in an April 2011 addendum to the January 2011 VA examination, the examiner clarified that the Veteran's flare-ups of back pain occurred during cold weather, were not incapacitating, and prevented the Veteran from doing yard work and other strenuous tasks, in the opinion of the Court, the Board failed to fully consider these findings in its evaluation of limitation of flexion. Under the circumstances, the Board's statement of reasons or bases was considered inadequate, necessitating remand. Pertinent evidence of record is to the effect that, in addition to degenerative disc disease of the lumbosacral spine, service connection is also in effect for radiculitis of the right and left lower extremities, each assigned a 20 percent evaluation. Moreover, a review of the record discloses that the Veteran, apparently, last underwent a VA spine examination for the purpose of determining the severity of his service-connected degenerative disc disease in January 2011, at this point, almost two and one-half years ago. Significantly, since the time of that VA examination, the Veteran has received additional treatment for his service-connected degenerative disc disease of the lumbar spine, to include steroid injections. Under the circumstances, the Board is of the opinion that an additional, more contemporaneous VA examination would be appropriate prior to a final adjudication of the Veteran's claim for increase. See Snuffer v. Gober, 10 Vet. App. 400 (1997); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Accordingly, in light of the aforementioned, the case is REMANDED to the RO/AMC for the following actions: 1. Any pertinent VA or other inpatient or outpatient treatment records, subsequent to October 2012, the date of the most recent evidence of record, should be obtained and incorporated in the claims folder. The Veteran should be requested to sign the necessary authorization for release of any private medical records to the VA. All attempts to procure such records should be documented in the file. If the RO/AMC cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file. In addition, the Veteran and his representative should be informed of any such problem. 2. The Veteran should then be afforded an additional VA spine examination in order to more accurately determine the current severity of his service-connected degenerative disc disease of the lumbosacral spine. The Veteran is hereby notified that it is his responsibility to report for the examination, and to cooperate in the development of his claim. The Veteran is further advised that the consequences for failure to report for a VA examination without good cause may include denial of his claim. 38 C.F.R. § 3.158, 3.655 (2012). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to his last known address. It should also be indicated whether any notice sent was returned as undeliverable. Following completion of the examination, and in accordance with the latest worksheets for rating degenerative disc disease of the lumbosacral spine, the examiner is to provide a detailed review of the Veteran's pertinent medical history and current complaints, as well as the nature and extent of his service-connected degenerative disc disease of the lumbosacral spine. In particular, the examiner should specifically comment regarding any and all limitation of motion (including additional limitation of motion following repetitive use resulting from pain, weakness, fatigue, a lack of endurance, and/or incoordination), as well as the presence (or absence) of incapacitating episodes. The examiner should also discuss factors associated with disability, such as objective indications of pain on pressure or manipulation. Finally, the examiner should inquire as to whether the Veteran experiences flare-ups associated with his service-connected degenerative disc disease of the lumbosacral spine. To the extent possible, any additional functional loss or limitation or motion attributable to such flare-ups should be described. A complete rationale must be provided for any opinion offered, and all information and opinions, once obtained, must be made a part of the Veteran's claims folder. The claims folder must be made available to and reviewed by the examiner prior to completion of the examination. In addition, the examiner must specify in his report that the claims file and Virtual VA records have been reviewed. 3. The RO/AMC should then review the examination report to ensure that it is in complete compliance with the directives of this REMAND, and that the examiner has documented his consideration of all records contained in Virtual VA. If the report is deficient in any manner, the RO/AMC must implement corrective procedures. 4. The RO/AMC should then readjudicate the Veteran's claim for an evaluation in excess of 20 percent for service-connected degenerative disc disease of the lumbosacral spine. Should the benefit sought on appeal remain denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case (SSOC). The SSOC must contain notice of all relevant action taken on the claim for benefits since the issuance of the most recent SSOC in September 2011. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome in this case. The Veteran need take no action unless otherwise notified. The appellant 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). _________________________________________________ MICHAEL D. LYON 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).