Citation Nr: 1324016 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 10-47 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to a disability rating higher than 10 percent for residuals of a lumbosacral strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from June 1990 to November 1990, and from January 1993 to January 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal a from rating decision dated in October 2009, of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, which denied the benefit sought on appeal. In May 2011, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A copy of the transcript is in the claims file. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the appellant if further action is required. REMAND The Veteran seeks a rating higher than 10 percent for lumbosacral strain. Although her last VA examination is not overly stale, review of the claims file shows that her lumbosacral spine disability may have worsened since she was last examined in 2009. At her Board hearing in May 2011, the Veteran asserted that her back disability had increased in severity. She reported that three to four times a year she experienced flare-ups of back pain that lasted approximately a week each time. During these episodes her pain increased to 10 out of 10 and she was rendered bedridden. Although she denied seeking treatment for her back since 2009, she reported being prescribed bed rest by a physician. She added that her lower back pain radiated to her lower extremities. Sensitivity to touch and muscle spasms with disc movement or disc dislocation were reported as well. She could not walk prolonged distances, or stand or sit for extended periods of time. An impaired ability to bend, climb stairs, squat, do any moderate to heavy lifting, perform household shores, or drive was also noted. She testified that she required assistance during her flare-ups and that her disability interfered with her employment, causing her to lose approximately 4 weeks of work during the previous 12 months. Reportedly, she had recently changed jobs because she was unable to perform field work due to her back. She stated that she was currently employed in a sedentary position that allowed her to occasionally work from home. A new examination is needed to fully and fairly evaluate the Veteran's claim for an increased rating. Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994) (Board should have ordered a contemporaneous examination of the Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). Finally, as previously noted, the Veteran has denied receiving treatment for her low back since 2009; however, she also reported being prescribed bed rest by a physician, as well as medication to treat the low back condition. Accordingly, relevant ongoing medical records, if any, should also be obtained, to include any VA treatment records. The case is REMANDED for the following action: 1. Advise the Veteran that she may submit any evidence or information she might have to support her claim, to include lay statements. 2. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all health care providers, both VA and private, who have treated her for the low back disability. After securing any necessary release, the RO/AMC should request any relevant records identified which are not duplicates of those already contained in the claims file. The RO/AMC must make two attempts for the relevant private treatment records. If any requested records are not available the Veteran should be notified of such. 3. Schedule the Veteran for a VA examination to ascertain the current nature and severity of her service-connected lumbosacral spine disability. The claims folder should be reviewed by the examiner, and the report should note that review. The examiner should provide a rationale for the opinion and reconcile it with all pertinent evidence of record. Specifically, the VA examiner's opinion should address the following: a) Identify all orthopedic pathology related to the Veteran's service-connected lumbosacral spine disability. b) Provide range of motion and repetitive motion findings of the lumbosacral spine and state whether ankylosis is shown. c) Describe any functional limitation due to pain, weakened movement, excess fatigability, pain on use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion should be noted. If feasible, any additional limitation should be portrayed in terms of the degree of additional range of motion loss. d) State the length of time during the past twelve months that the Veteran has had incapacitating episodes due to her lumbosacral spine disability. 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 lumbosacral spine disability is manifested by any neurological impairment, and, if so, which nerves are involved, and the extent of the impairment. The diagnostic criteria applicable to nerve impairment distinguish the types of paralysis as complete and incomplete. Incomplete paralysis is further divided into the categories of mild, moderate, and severe. With those categories in mind, classify any low back disability neurological pathology, distinguishing among the categories and using the results of all pertinent testing of record. Conduct all necessary sensory, reflex, and motor testing. If using results obtained from an EMG or nerve conduction velocity tests, or other such tests, explain, in terms meaningful to a layperson, the base line results versus those obtained for the appellant. Explain the meaning of any abnormal results that are obtained. f) State what impact, if any, the Veteran's lumbosacral spine disability has on her activities of daily living, including the ability to obtain and maintain employment. 4. Then, readjudicate the claim. If any benefit sought remains denied, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. 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). _________________________________________________ C. CRAWFORD 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).