Citation Nr: 1324062 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 08-14 238 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE 1. Entitlement to an evaluation in excess of 20 percent for service-connected residuals of a thoracic spine injury with anterior wedging, T8-T11. 2. Entitlement to an initial evaluation in excess of 20 percent for service-connected degenerative changes of the cervical spine with possible myelopathy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1975 to December 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision in which the RO denied an increased rating for service-connected residuals of a thoracic spine injury with anterior wedging, T8-T11, and granted service connection for degenerative changes of the cervical spine with possible myelopathy. In April 2012, the Board denied an evaluation in excess of 20 percent for service-connected residuals of a thoracic spine injury with anterior wedging, T8-T11, and granted an evaluation of 20 percent for service-connected degenerative changes of the cervical spine with possible myelopathy. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In November 2012, the Court issued an Order granting a Joint Motion for Remand by the parties, vacating the decision with respect the issues described above, and remanding the matter to Board for further action. 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 As noted, in November 2012 the Court granted a Joint Motion for Remand. The parties agreed that the Board erred by failing to consider whether the Veteran's neurologic symptomatology warranted separate ratings from his service connected spine disorders, and by not adequately discussing how the Veteran's August 2010 VA examination complied with VA's duty to assist. For claims in which symptoms of a neurologic defect have been claimed or found, 38 C.F.R. § 4.120 dictates that neurological conditions are to be rated in proportion to the impairment of motor, sensory or mental function. 38 C.F.R. § 4.120 (2012). Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Furthermore, Note 1 of the General Rating Formula for Diseases and Injuries of the Spine indicates that objective neurologic abnormalities, including but not limited to bowel or bladder impairment, are to be evaluated separately from the spine itself. 38 C.F.R. § 4.71a (2012). Here, the parties to the Joint Motion for Remand noted that on August 2010 VA examination, the Veteran complained of paresthesia and numbness relative to both the cervical and thoracic spine. The parties further indicate that the Board failed to explain why the Veteran was not entitled to one or more separate ratings for these neurological problems. On remand to the RO/AMC for VA examination, the examiner should identify all neurologic abnormalities and diagnoses related to either service-connected residuals of a thoracic spine injury with anterior wedging at T8-T11, or related to service-connected degenerative changes of the cervical spine with possible myelopathy. The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Among the duties to notify and to assist, is VA's obligation to provide the Veteran with the opportunity to undergo VA examination. 38 C.F.R. § 3.159(c)(4) . VA examination is not required in all cases, however where a VA examination has been obtained, VA must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Adequacy of an examination is determined by numerous factors. Here, the parties to the Joint Motion noted that the Veteran had told a VA examination in November 2003 that back pain was worse at night and in the winter. However because the August 2010 examination was conducted during the summer, the parties argued that the examiner was not capable of observing the Veteran's symptoms at their worst, nor did the examiner indicate what the additional functional limitation would be during flare-up of symptoms; e.g. during the winter. See Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994) (concluding that examination during remission phase did not accurately reflect elements of disability that caused veteran to miss three to four months of work at a time). The Veteran should be scheduled for VA examination if possible during a period of exacerbation as indicating by the Veteran. Accordingly, the case is REMANDED for the following action: 1. The RO should contact the Veteran and request that he identify any private or VA treatment for the service-connected thoracic and cervical spine disabilities since August 2010, the date of the most recent VA examination. Any necessary authorization for the release of records should be obtained from the records and any records identified should be requested. All records obtained must be associated with the claims file. 2. Schedule the Veteran for examination of the spine. If possible, the examination should be scheduled in the winter as the Veteran has indicated that the spine disabilities are worse during the winter months. The entire claim file (i.e., the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. On examination, the examiner should fully evaluate the Veteran's service connected residuals of a thoracic spine injury with anterior wedging, T8-T11 and service-connected degenerative changes of the cervical spine with possible myelopathy. The examiner must report the range of motion in degrees and comment on the presence and extent of any painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. The examiner should also report if there is evidence of ankylosis. The examiner should also note all neurologic abnormalities and diagnoses and indicated whether any diagnosed neurologic condition or conditions are related to either service connected residuals of a thoracic spine injury with anterior wedging, T8-T11 or service-connected degenerative changes of the cervical spine with possible myelopathy. The examiner should describe the level of severity of the neurologic symptom and describe the limitation(s) caused by any identified neurologic abnormalities associated with the spine disabilities. 3. After completing all indicated development, readjudicate the claims of entitlement to an evaluation in excess of 20 percent for service-connected residuals of a thoracic spine injury with anterior wedging, T8-T11, and entitlement to an initial evaluation in excess of 20 percent for service-connected degenerative changes of the cervical spine with possible myelopathy, to include consideration of any separately rating neurologic conditions, in light of all the evidence of record. If any benefit sought on appeal remains denied, a Supplemental Statement of the Case should be furnished to the Veteran, and he should be afforded a reasonable opportunity to respond. The appellant has the right to submit additional evidence and argument on the 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). _________________________________________________ K. J. ALIBRANDO 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).