Citation Nr: 1322874 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 04-02 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for lower extremity radiculopathy. 2. What schedular evaluation is warranted for a chronic lumbosacral strain from December 6, 2002 to October 5, 2004? 3. What schedular evaluation is warranted for a chronic lumbosacral strain from October 6, 2004 to April 1, 2012? 4. What schedular evaluation is warranted for a chronic lumbosacral strain from April 2, 2012? 5. Entitlement to an extraschedular evaluation for a chronic lumbosacral strain from December 6, 2002. 6. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Bryan J. Held, Claims Agent ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. The appeal is REMANDED to the RO via the Appeals Management Center, in Washington, DC. VA will notify the appellant if further action is required. REMAND The rating criteria to evaluate spinal disorders were changed during the period relevant to the Veteran's claim. Effective September 26, 2003, VA revised the criteria for rating all disabilities of the spine. See 68 Fed. Reg. 51,454 - 51,458 (2003). Hence, the regulations governing spinal disorders as they existed prior to the change is applicable to the appellant's claim for the periods both prior to and after the dates of the respective regulatory changes. The revised regulations are only applicable from the effective dates of the change forward. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). There is no indication in the record, however, that the former rating criteria have been considered in the evaluation of the chronic lumbosacral strain. See e.g., 38 C.F.R. § 4.71a, Diagnostic Codes 5289, 5292, 5295 (2002). Thus, additional development to correct this deficiency must be undertaken. The Veteran's service treatment records show that he began having chronic back pain after a motorcycle accident in 1974. X-rays of the lumbosacral spine were normal except with sacralization of the L-5 vertebra. The assessment was persistent muscle strain. In an April 2010 rating decision, VA awarded entitlement to service connection for a chronic lumbosacral strain. No other lumber disorder was granted service connection. The evidence reflects, however, that the appellant has also been diagnosed with lumbar spine degenerative disc disease and mild degenerative stenosis, disorders which are not currently service connected. As the evidentiary record is unclear as to whether lumbar spine degenerative disc disease and stenosis are related to service, related to the service connected lumbosacral strain, or are caused by nonservice connected factors to include age, further examination and development are necessary. The record is also unclear as to whether the Veteran's claimed lower extremity radiculopathy is related to the service connected lumbar strain, or whether it is due to the Veteran's currently nonservice connected lumbar degenerative disc disease and spinal stenosis and/or diabetes mellitus. An April 2012 VA spine examiner indicated that the appellant had mild right-sided radiculopathy due to lumbar degenerative disc disease; however, motor and sensory findings were clinically normal. A May 2012 VA peripheral nerve examiner opined that the claimed radiculopathy was not related to service and that Veteran's medical history suggested that he had peripheral neuropathy more likely than not related to diabetes. The May 2012 examiner further noted that there were no clinical symptoms or clinical signs present in the areas of nerve root that could be affected by the lumbar degenerative disc disease as indicated by magnetic resonance imaging (MRI) studies. In requesting the opinion, however, the RO erroneously reported to the examiner that the Veteran had had abnormal monofilament testing on diabetic foot examinations since 2002. In actuality, a review of VA diabetic foot examinations reveals abnormal findings on only two occasions - in September 2002 and January 2008. Diabetic foot examinations were negative or normal in September 2003, January 2005, February 2006, February 2007, March 2009, March 2010, January 2011, and most recently in December 2011. For these reasons, the Board finds that the April and May 2012 examinations are inadequate and that another VA examination is needed to determine the etiology of his claimed radiculopathy. The evidence reflects that the Veteran most recently worked as a machine operator until November 2009. He asserts that he is no longer able to work because of his service-connected chronic lumbosacral strain. Social Security Administration records reflect that he is receiving disability benefits for a primary diagnosis of diabetes mellitus and a secondary diagnosis of a disability involving the muscle, ligament, and fascia; however, the appellant also claimed that his lumbar disorder prevents him from working. In May 2009, S.G., the Veteran's former supervisor from 1990 to 1996, stated that the appellant's absenteeism was due to a past back injury. A January 2011 VA examiner opined that the Veteran's service-connected tinea versicolor and lumbar strain would not render the appellant unable to find gainful employment, either of sedentary or physical in nature. The examiner noted, however, that the Veteran disability picture was "a bit more cloudy" because he also had degenerative disc disease, which was not service-connected. An April 2012 VA examiner opined that the Veteran's thoracolumbar spine conditions impacted his ability work and that he was not able to lift and had limited ability to climb stairs. The examiner did not distinguish the effects of the lumbosacral strain from the effects of degenerative disc disease. Given medical evidence suggesting that the Veteran can no longer work in his usual occupation due to, at least in part, his lumbosacral strain, the claim of entitlement to a total disability evaluation based on individual unemployability is essentially a component of the claim for a higher rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Also, given evidence that lumbar degenerative disc disease may impact the Veteran's employability, the question of entitlement to a total disability evaluation based on individual unemployability due to service connected disorders must be deferred pending a determination as to whether the Veteran's lumbar degenerative disc disease and stenosis are related to service. Consideration is also in order as to whether the Veteran is entitled to an extraschedular evaluation. The determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three step inquiry. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If the RO or Board determines that (1) the schedular rating does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted. Id. In this case, the RO has not considered whether the Veteran's lumbar strain is entitled to a higher rating on an extraschedular basis or whether he is entitled to a total disability evaluation due to individual unemployability due to his service-connected disabilities. The RO should adjudicate these matters, in the first instance, to avoid any prejudice to the Veteran. See e.g. Bernard v. Brown, 3 Vet. App. 384 (1993). The claims file currently includes VA outpatient treatment records from the VA Medical Center in Columbia, South Carolina, through May 2012, which indicate the Veteran is receiving regular ongoing treatment at VA. Therefore, on remand, the RO should obtain any outstanding records of treatment or evaluation. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following actions: 1. The RO must provide the Veteran with all pertinent regulations governing the rating of a chronic lumbar strain that were in effect prior to September 26, 2003, to specifically include 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293, 5295 (2003). 2. The RO should obtain all outstanding records of VA evaluation and/or treatment of the Veteran. All records/responses received should be associated with the claims file. If the RO cannot locate such records, the RO must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 3. After completion of all of the foregoing, the Veteran must be afforded a VA examination by a neurosurgeon to determine the nature and extent of any diagnosed lumbar strain; the etiology of any diagnosed lumbar disorder other than a lumbar strain; and the etiology of any lower extremity radiculopathy. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The Veteran's claims folder and all pertinent records from Virtual VA must be made available for the examiner's review prior to the entry of any opinion. A notation to the effect that this record review took place should be included in the neurosurgeon's report. The neurosurgeon is to first opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that any diagnosed lumbar disorder, other than the already service connected lumbar strain, is related to military service, to include the in-service motorcycle accident. Alternatively, is it at least as likely as not that any diagnosed lumbar disorder is permanently aggravated by the lumbar strain. In so doing the neurosurgeon must also opine whether it is more likely than not that any diagnosed lumbar disorder, other than a lumbar strain, is not related to service or the service connected lumbar strain. The neurosurgeon must provide a complete rationale for any opinion offered. If the neurosurgeon is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained. The neurosurgeon must secondly address the nature and etiology of any disability associated with the Veteran's complaints of lower extremity radiating pain, numbness, and tingling. Specifically, the neurosurgeon must opine whether it is at least as likely as not, i.e., is there a 50/50 chance, that any diagnosed lower extremity neurological disorder is related to a lumbar disorder that is found to be service related or caused or aggravated by a service connected disorder. The examiner must also address whether it is more likely than not that any diagnosed lower extremity radiculopathy is related to nonservice connected factors. The neurosurgeon must provide a complete rationale for any opinion offered. If the neurosurgeon is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained. Finally, after determining the nature and etiology of any diagnosed lumbar disorder and lower extremity radiculopathy, the neurosurgeon must address the nature and extent of each diagnosed disorder, and to the extent appropriate, carefully distinguish the pathology caused by any diagnosed service related disorder from those disorders she/he concludes are not related to either service or a service connected disorder. The neurosurgeon must address how any service related disorder impacts the appellant's ability to work. The neurosurgeon must provide a complete rationale for any opinion offered. If the neurosurgeon is unable to provide an opinion that fact must be stated and the reasons why an opinion cannot be provided explained. 4. The Veteran is to be notified that it is his responsibility to report for an examination and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 5. After the development requested has been completed, the RO should review any report to ensure that it is in complete compliance with the directives of this REMAND. The RO must ensure that the examiner documented his or her consideration of Virtual VA. If the report is deficient in any manner, the RO must implement corrective procedures at once. 6. After the above has been completed to the extent possible, the RO should review the record and conduct any other development as may be indicated by the responses received as a consequence of the action taken in the preceding paragraphs. Specific to the claims of entitlement to an extraschedular evaluation for chronic lumbosacral strain and entitlement to a total disability evaluation based on individual unemployability, the RO may decide to pursue further development of the Veteran's employment history to include securing an evaluation by a vocational rehabilitative specialist. If additional development is needed, such should be accomplished. 7. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims in light of all pertinent evidence and legal authority. The RO must specifically consider and discuss whether the procedures for referral for consideration of an extraschedular evaluation for the chronic lumbosacral strain or a total disability evaluation based on individual unemployability on an extraschedular basis, pursuant to 38 C.F.R. § 3.321(b) or 4.16(b), respectively, are appropriate. The RO should also consider and discuss the old and new criteria for evaluating spine disabilities. 8. Thereafter, if any benefit sought on appeal remains denied, the RO must furnish the Veteran and his representative an appropriate supplemental statement of the case that includes citation to and discussion of all additional legal authority considered, particularly 38 C.F.R. §§ 3.321(b) and 4.16(b), the old and new criteria for evaluating spine disabilities, as well as clear reasons and bases for all determinations. The appellant and his representative must be afforded an appropriate time period to respond before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ DEREK R. BROWN 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).