Citation Nr: 1322146 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-43 020 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an increased initial evaluation in excess of 10 percent for lumbar spine intervertebral disc syndrome with mild scoliosis. 2. Entitlement to separate rating(s) for neurologic manifestations of lumbar spine disability (claimed as service connection for bilateral radiculopathy). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from June 2007 to April 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Denver, Colorado, Regional Office (RO) of the Department of Veterans Affairs (VA) that assigned a noncompensable disability rating for intervertebral disc syndrome of the lumbar spine, after granting service connection for the same. Service connection for radiculopathy of the lower extremities was denied. In September 2009, the initial evaluation assigned for intervertebral disc syndrome of the lumbar spine was increased to 10 percent. The Veteran requested a Travel Board hearing. The requested hearing was conducted by the undersigned Veterans Law Judge in April 2013. 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 was separated from service in April 2008 due to low back pain. VA examination was conducted in May 2008, some five years ago. The Veteran contends that his low back pain has increased in severity since the 2008 VA examination. He also testified that he did not receive the notice of a VA examination scheduled in 2012 because he had moved, and that he has since updated his address with VA and is willing to attend an examination. The Veteran should be afforded contemporaneous VA examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). In his substantive appeal, and during his hearing before the Board, the Veteran contended that he had neurologic manifestations of his back disability, to include radiculopathy. The examiner who conducted the May 2008 VA examination stated that there was insufficient clinical information to determine whether there was radiculopathy in either lower extremity. The Veteran should be afforded VA examination which addresses the Veteran's contention that he has radiculopathy or other neurologic manifestations of the service-connected lumbar disability. The Veteran indicated, at his April 2013 hearing, that he had received little treatment for his back disability outside VA. However, the Veteran should be afforded the opportunity to submit or identify any evidence, medical or non-medical, that may assist him to substantiate his claims. Accordingly, the case is REMANDED for the following action: 1. Obtain the Veteran's post-service VA clinical records from August 2010 to the present, if the Veteran has obtained VA treatment since August 2010. Do not associate duplicate records with the claims files. 2. Afford the Veteran an opportunity to identify each post-service private provider or treating facility. Ask the Veteran to include facilities at which diagnostic examinations, including radiologic examinations, were conducted. He should also be asked to clarify whether his claim for a separate compensable rating for radiculopathy is limited to his right lower extremity. 3. Afford the Veteran an opportunity to submit or identify any alternative evidence about the severity or effects of his back pain, to include records from an employer, educational institution, pharmacy, friends, or the like. 4. AFTER the actions required above are completed, the Veteran should be afforded VA examinations of the lumbar spine as necessary to identify separate orthopedic and neurologic manifestations of the service-connected lumbar disability. The claims folder should be made available to the examiner(s) for review in connection with the examination(s). The examiner(s) must indicate that pertinent documents, to include electronic records, were reviewed. The examiner should comment on the service treatment records, the May 2008 VA examination, VA outpatient treatment records which reference radiculopathy, and the Veteran's lay statements as to severity and manifestations of lumbar disability since service separation in 2008. Indicated tests and studies should be accomplished. The examiner(s) should then address the following: a. Indicate whether there is forward flexion of the thoracolumbar spine less than 30 degrees or favorable ankylosis of the thoracolumbar spine. The description of the range of motion of the spine must separately state the Veteran's actual range of motion in each plane and identify the point at which pain begins with each motion. State whether the total range of motion is decreased after repeated motions and whether the point in the range of motion at which pain is manifested changes after repetitions of the motion. State whether or not the Veteran manifests pain, weakened movement, excess fatigability or incoordination on movement, or due to pain on use or during flare-ups. b. Document the number of weeks, if any, during the past 12 months, that the Veteran has had "incapacitating episodes," defined 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." c. State whether the Veteran has any neurologic impairment. If neurologic impairment is identified and attributed to the Veteran's lumbar spine disability, the examiner should identify the nerve group(s) involved, the extremity or extremities involved, and the manifestations of neurologic impairment. The examiner should indicate whether the Veteran experiences mild, moderate, moderately severe, or severe incomplete paralysis or complete paralysis of the affected nerve group(s). The rationale for the opinions expressed should be provided. If the examiner cannot provide an opinion without resorting to mere speculation, the examiner should explain why speculation is required. 5. After completion of the above and any additional development deemed necessary, the appeal should be readjudicated. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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 A. HERMAN 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).