Citation Nr: 1319930 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 07-19 9440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased disability rating (evaluation) in excess of 20 percent for lumbosacral strain and residuals of spinal surgeries and fusion (low back disability). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from February 1966 to December 1971. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2005 rating decision of the Regional Office (RO) in San Diego, California, prepared on behalf of the RO in Los Angeles, California, which maintains original jurisdiction over the claims file. The issue on appeal was previously remanded by the Board in March 2012 for further evidentiary development of requesting outstanding Social Security Administration (SSA) disability records. This was accomplished, and the claim was readjudicated in an August 2012 supplemental statement of the case. For this reason, the Board concludes that the Board's remand instructions were substantially complied with. See Stegall v. West, 11 Vet. App. 268 (1998), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND In the March 2012 decision, the Board granted service connection for spondylolisthesis resulting in spinal fusion of the lumbosacral spine, thus broadening the scope of the service-connected low back disability. In the March 2012 remand directives, the RO was asked to obtain any outstanding SSA records and to readjudicate the claim for an increased disability rating for the service-connected low back disability, which now included spondylolisthesis resulting in spinal fusion of the lumbosacral spine in addition to lumbosacral strain. The Board instructed the RO that both service-connected back disabilities should be rated together under the spine rating criteria. In compliance with the March 2012 Board remand, the RO requested records from SSA related to the Veteran's claim for disability benefits. In June 2012, the RO received a response from SSA indicating that records related to the Veteran's claim had been destroyed. In June 2012, the RO spoke to the Veteran to determine whether he had records relating to his SSA disability claim in his possession; however, the Veteran indicated that he did not. Accordingly, the Board finds that the RO has made reasonable attempts to obtain SSA disability records and additional attempts would be futile. See 38 C.F.R. § 3.159(c)(2) and (3) (2012). The Veteran was also appropriately notified. 38 C.F.R. § 3.159(e)(1). Subsequently, in a March 2012 rating decision, the RO granted a 20 percent evaluation for the Veteran's low back disability, which included symptoms of lumbosacral strain and residuals of surgeries and spinal fusion, effective October 29, 2004 (the date of the Veteran's claim for an increased rating). A supplemental statement of the case was issued in August 2012, which continued the 20 percent low back disability rating. Thereafter, in August 2012, the Veteran submitted a statement noting that medical records from Dr. J.S. had not been obtained and considered. Specifically, the Veteran stated that Dr. J.S. performed a stimulation implant procedure in September 2006, which was performed in order to block pain signals from the back to the brain. The Veteran further noted that, in efforts to alleviate more pain, he would be undergoing a second implant in September 2012. Notably, the Veteran provided a properly executed VA Form 21-4142 (Authorization and Consent to Release Information to VA). Upon review of the claims file and the Virtual VA electronic claims file, it does not appear that medical records from Dr. J.S. have been requested. On remand, reasonable efforts should be made to obtain these treatment records which directly relate to the current severity of the Veteran's low back disability on appeal. The Board notes that records should be requested dating back to, at the very least, October 29, 2003. See 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2012) (if an increase in disability occurs within one-year prior to the claim, the increase is effective as of the date the increase was factually ascertainable). Further, the last VA spine examination was obtained in September 2009 in conjunction with the Veteran's claim for an increased rating for lumbosacral strain. The Board notes that the September 2009 VA examination does not adequately address the spine rating criteria, to include incapacitating episodes as outlined in Diagnostic Code 5243 for intervertebral disc syndrome. See 38 C.F.R. § 4.71a (2012); see also Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes). On remand, the Veteran should be afforded a VA spine examination to assist in determining the current severity of his low back disability, to include any additional symptoms or impairments from the second stimulation implant procedure purportedly conducted in September 2012 by Dr. J.S. Further, the last VA treatment record is dated June 2, 2008 from the Loma Linda VA Medical Center (VAMC). On remand, updated VA treatment records should be obtained and associated with the claims file or the Virtual VA electronic claims file. Accordingly, the issue of a rating in excess of 20 percent for low back disability is REMANDED for the following actions: 1. The RO/AMC should make reasonable efforts to obtain private treatment records from Dr. J.S., from October 29, 2003 to the present. Any records so obtained should be associated with the claims folder. If certain records cannot be obtained, the Veteran should be so notified and allowed the opportunity to obtain them himself. 2. Obtain all treatment records from the Loma Linda VAMC from June 3, 2008 to the present. Any documents received by VA should be associated with the record. Any negative responses should be properly documented in the record. 3. Then, schedule the Veteran for a VA spine examination in order to assist in determining the current level of severity of his low back disability. The relevant documents in the claims folder should be made available to the examiner, who should indicate on the examination report that (s)he has reviewed the documents in conjunction with the examination. A history from the Veteran, as well as all indicated studies, including range of motion testing in degrees using a goniometer, should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should indicate whether the Veteran's low back disability is so severe so as to result in incapacitating episodes (i.e., episodes in which his adverse symptomatology required bed rest ordered by a physician). If so, the examiner should comment on the duration and frequency of such incapacitating episodes. The examiner should comment on any adverse neurological symptomatology caused by the low back disability, and, if present, if that symptomatology is best characterized as "slight," "moderate," "moderately severe," or "severe." The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. 4. Thereafter the claim for a rating in excess of 20 percent for low back disability should be readjudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate time period within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran is advised to appear and participate in any scheduled VA examination, as failure to do so may result in denial of the claim. See 38 C.F.R. § 3.655 (2012). 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). _________________________________________________ J. Parker 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).