Citation Nr: 1318081 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 06-11 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUE Entitlement to an evaluation in excess of 40 percent for chronic lumbosacral strain with degenerative changes. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1987. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire, which continued a 20 percent rating assigned for chronic lumbosacral strain with degenerative changes. In a March 2006 rating decision, the rating assigned for chronic lumbosacral strain with degenerative changes was increased to 40 percent, effective February 4, 2005. The RO also granted separate 10 percent ratings for radicular symptoms of the right and left lower extremities, also effective February 4, 2005. In a November 2010 rating decision, the Appeals Management Center (AMC) in Washington, DC, assigned an earlier effective date for these ratings of December 7, 2004. However, the Veteran's appeal remains before the Board despite these actions. Cf. AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to a decision assigning a particular rating, a subsequent decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). In September 2009, the Veteran and his spouse testified at a videoconference hearing before the undersigned Acting Veterans Law Judge. A transcript is of record. In June 2010, the Board remanded the increased rating claim for the Veteran's service-connected lumbar spine disability as well as a claim for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for additional development. In a November 2010 rating decision, the AMC awarded entitlement to a TDIU, effective December 7, 2004. Based on the foregoing, that issue is no longer before the Board for appellate review. The following determination is based on review of the Veteran's claims file in addition to his Virtual VA "eFolder ." The appeal is REMANDED to the RO via the AMC. VA will notify the appellant if further action is required. REMAND Unfortunately, the Board finds that further development on the claim of entitlement to an evaluation in excess of 40 percent for chronic lumbosacral strain with degenerative changes on appeal is warranted, even though such will, regrettably, further delay an appellate decision on this matter. In June 2010, the Board remanded the claim for entitlement to a rating in excess of 40 percent for chronic lumbosacral strain with degenerative changes in part to obtain the Veteran's treatment records from the VA Medical Center (VAMC) in Manchester dated from February 2004. Review of the claims folder and Virtual VA eFolder does not indicate that a request to this facility was made. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). This must be rectified on remand. VA did obtain treatment records from the White River Junction VAMC dated since April 2009. The most recent records from this facility were printed in June 2010. Review of the Veteran's Virtual VA folder reveals that records from the White River Junction VAMC dated in July 2012 are also of record. As it appears there may be outstanding VA treatment records from this facility, and records generated by VA facilities that may have an impact on the adjudication of a claim are considered to be in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file, remand is required to obtain them. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Pursuant to the Board's June 2010 remand, the Veteran was also asked to provide the names, addresses, and approximate dates of treatment for all medical care providers who treated his service-connected lumbar spine disability for the period from February 2004 to the present. Of particular interest were any additional private treatment records from A. C., M. D. for the time period from November 2002 to the present. In July 2010, the Veteran submitted a selection of private treatment records dated from 2004 to 2005 from A. C., M. D., as well as several VA Forms 21-4142s (Authorization and Consent to Release Information to VA) that had been signed by him and witnessed by his spouse, leaving the section in which the treatment provider and address were to be provided blank. These efforts should be renewed on remand and the Veteran should be informed that he must completely fill out the required forms in order for VA to obtain any private treatment records pertaining to his service-connected lumbar spine disability. The claim was also remanded in order to afford the Veteran a new VA examination, which was completed in July 2010. Review of the examination report reveals that clarification is needed. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note 5. The July 2010 VA examiner indicated that the Veteran had ankylosis of the entire thoracolumbar spine, reporting that the position of the thoracolumbar spine was in neutral (which, pursuant to VA regulations, equates to favorable ankylosis and also indicates that the thoracolumbar spine was not fixed in flexion or extension). The examiner also reported that indications of unfavorable ankylosis included neurological symptoms due to nerve root stretching. However, the examiner then provided range of motion measurements for this segment of the spine (which again indicates that the thoracolumbar spine was not fixed in flexion or extension). Given these discrepancies, another VA examination should be scheduled, preferably with an orthopedist. As the claim is being remanded for the foregoing reasons, any temporary claims folder created must be obtained. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's records from the Manchester VAMC, dated since February 2004, and from the White River Junction VAMC, dated since June 2010. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(c)(2),(e). 2. Ask the Veteran to provide the names, addresses, and approximate dates of treatment for all medical care providers who treated his service-connected lumbar spine disability for the period from February 2004 to the present. Of particular interest are any private treatment records from A. C., M. D. for the time period from November 2002 to the present. The Veteran must specifically be informed that he must completely fill out the required forms in order for VA to obtain any private treatment received for his service-connected lumbar spine disability. 3. Obtain any temporary claims folder created. 4. Schedule an appropriate VA examination, preferably with an orthopedist, to determine the current nature, extent, and severity of the Veteran's service-connected lumbar spine disability. The entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA) must be reviewed by the examiner in conjunction with the examination. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file must be printed and associated with the paper claims file so they can be available to the examiner for review. All indicated tests and studies (to include x-rays and/or NCV/EMG) are to be performed and the examiner should review the results of any testing prior to completion of the report. The examiner is to report the range of motion measurements for the lumbar spine, in degrees. The examiner should render a specific finding as to whether the Veteran exhibited either unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note 5. The examiner should indicate whether there is any pain, weakened movement, excess fatigability, or incoordination on movement of the lumbar spine, and whether there is likely to be additional range of motion loss of the service-connected lumbar spine due to any of the following: (1) pain on use, including flare-ups; (2) weakened movement; (3) excess fatigability; (4) incoordination; (5) or repeated use. The above determinations must, if feasible, be expressed in the degree of the additional range of motion loss due to pain on use, with repetitive use, and during flare-ups. The examiner should indicate whether there is evidence of any additional loss of range of motion of the lumbar spine due to these factors that is equivalent to unfavorable ankylosis of the thoracolumbar spine. The examiner should indicate whether the Veteran has intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined by VA regulations as 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. The examiner should also identify all neurologic manifestations of the Veteran's service-connected lumbar spine disability, to include sensory loss, and bowel, bladder, or erectile dysfunction, with reference to the nerve(s) affected. All opinions expressed should be supported by a complete rationale. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation. 5. Thereafter, the AMC must review the claims folder to ensure that the foregoing requested development has been completed. In particular, review the requested medical examination to ensure that it is responsive to and in compliance with the directives of this REMAND and if not, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completion of the above and any additional development deemed necessary, the AMC must readjudicate the Veteran's claim on the basis of all the evidence on file and all governing legal authority. If the benefit sought on appeal is not granted, the Veteran and his representative must be provided with a SSOC, which should include a summary of all of the evidence added to the record since the November 2010 SSOC. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter 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 or by the U.S. 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). _________________________________________________ J. D. DEANE 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).