Citation Nr: 1322497 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 94-36 428 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to a disability rating in excess of 20 percent for residuals of a fracture of the left transverse process of the second lumbar vertebra. REPRESENTATION Veteran represented by: Sandra E. Booth, Attorney at Law WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Jennifer R. White, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to April 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1992 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). In January 1997 and February 1998, the Board remanded the matter for additional evidentiary development. In a January 1999 decision, the Board denied a disability rating in excess of 20 percent for residuals of a fracture of the left transverse process of the second lumbar vertebral body. The Veteran duly appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). While the case was pending before the Court, in December 1999, the Veteran's attorney and a representative of the VA Office of General Counsel, on behalf of the Secretary, filed a Joint Motion for Remand. In a December 1999 order, the Court granted the motion and vacated the Board's January 1999 decision. The Court remanded the matter to the Board for actions consistent with the December 1999 Joint Motion. In July 2000 and July 2002, the Board remanded the matter to the RO for due process considerations and additional evidentiary development. In a September 2005 decision the Board again denied the Veteran's claim. The Veteran once again appealed and in a January 2008 memorandum opinion, the Court vacated the September 2005 denial and remanded the claim to the Board. The Veteran's claim was again remanded to the RO in April 2009 for additional evidentiary development. In a February 2012 decision the Board denied the Veteran's claim. The Veteran duly appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). While the case was pending before the Court, the Veteran's attorney and a representative of the VA Office of General Counsel, on behalf of the Secretary, filed a Joint Motion for Remand. In a December 2012 order, the Court granted the motion and vacated the Board's February 2012 decision. The Court remanded the matter to the Board for actions consistent with the Joint Motion. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND The Veteran, through his representative in a May 2013 letter (also dated May 2009), contends that he should be receiving a 60 percent disability rating under the 1992 version of Diagnostic Code 5293 in addition to the current 20 percent disability rating. The Board notes that such disability rating would constitute impermissible pyramiding, as explained in prior Board decisions. The most recent joint remand was based on the fact that the Veteran did not have sufficient opportunity to provide a private medical opinion. The Board observes that the Veteran's claim arises from a November 1992 denial of additional disability benefits. The Veteran, through his representative, submitted a private medical opinion dated May 2013. Unfortunately, it's apparent from the report that the findings of current disability are based on a phone conversation with the Veteran. The private examiner indicates that the Veteran's lumbar spine is unfavorably ankylosed; although the report details ranges of motions seemingly inconsistent with such findings from prior in-person examinations. The Veteran is entitled to a new VA examination when there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); VAOPGCPREC 11-95 (1995). The Veteran's most recent VA examination was conducted in December 2009, and the evidence indicates that his disability has worsened in severity. See Proscelle v. Derwinski, 2 Vet. App. 629 (1992) (the Veteran is competent to provide an opinion that his disability has worsened). The Board further notes that no probative clinical evidence based on in-person examination of the Veteran is of record subsequent to the December 2009 VA examination with which to assess the current severity of the Veteran's disability. Therefore, the Veteran should be provided a VA examination to determine the current severity of his back disability. The Board additionally notes that the Veteran's representative submitted VA treatment records dated March 2013. The most recent VA treatment records in the claims file are dated December 2008. Thus, ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA treatment records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file all records from the VA Medical Center in Salt Lake City, Utah, dating from December 2008, which have not already been associated with the claims file. 2. After the above-requested development has been completed, schedule the Veteran for a VA examination to determine the current severity of his service-connected lumbar spine disorder and related conditions. The claims file must be reviewed by the examiner. The VA examiner should provide an explanation for each opinion expressed and reconcile that opinion with all pertinent evidence of record. In particular, the VA examiner should address the May 2013 private report and the evidence indicating that the orthopedic and neurological manifestations of Veteran's service-connected spine disorder may have worsened and resulted in increased impairment to include unfavorable ankylosis of the lumbar spine as well as, purportedly, IVDS with right leg radiculopathy. Specifically, the VA examiner's opinion should address the following: a) Identify all orthopedic pathology related to the Veteran's service-connected lumbar spine disorders. b) Provide range-of-motion and repetitive motion findings for the lumbar spine. c) Note whether there is any additional functional loss during flare-ups or caused by fatigability, weakened motion, incoordination, or painful motion, etc. DeLuca v. Brown, 8 Vet. App. 202 (1995). These functional losses should be portrayed in terms of the degrees of additional range of motion loss (beyond what is shown clinically). d) Identify the duration and frequency of "incapacitating episodes" due to the Veteran's lumbar spine disorder from November 1992 to the present, categorized by year. (Incapacitating episodes are periods of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician.) e) State whether the Veteran's service-connected lumbar spine disorder is manifested by neurologic impairment, and if so, which nerves are involved or seemingly involved, and the extent of the impairment. Specifically, the examiner should determine if any right lower extremity neuropathy is caused by the Veteran's service-connected lumbar spine condition. The diagnostic criteria applicable to nerve impairment distinguish the types of paralysis: complete and incomplete. With incomplete paralysis, the degree of paralysis is further divided into the categories of mild, moderate, and severe. With those categories in mind, classify each neurologic impairment caused by the Veteran's disc disease, distinguishing among the categories and using the results of all pertinent testing of record. f) State what impact, if any, the Veteran's lumbar spine disorder and associated neurologic problems have on his activities of daily living. 3. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If any benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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 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). _________________________________________________ JAMES L. MARCH 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).