Citation Nr: 1324264 Decision Date: 07/31/13 Archive Date: 08/07/13 DOCKET NO. 08-00 367A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for lumbar strain with degenerative disc disease, evaluated as 20 percent disabling prior to October 31, 2009, and as 40 percent disabling from that date. 2. Entitlement to an increased rating for degenerative joint disease of the right hip, evaluated as 10 percent disabling. 3. Entitlement to an increased rating for degenerative joint disease of the left hip, evaluated as 10 percent disabling. 4. Entitlement to a compensable rating for seasonal allergies with periodic epistaxis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from September 1979 to September 2001. This matter comes before the Board of Veterans' Appeals (Board) from June 2006 and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned Veterans Law Judge at the Board's Washington, DC offices in May 2013. A transcript of his hearing has been associated with the claims file. 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 seeks higher ratings for his back, hip, respiratory disabilities. In written communication and at his May 2013 hearing, the Veteran has alleged that his disabilities have worsened since last examined for VA rating purposes. Specifically, written statements dated in August 2012 reflect the Veteran's report that he has daily flares of his low back disability, and that his low back and hip disabilities were so painful as to interfere with any type of physical activity. He noted that he was unable to toilet or bathe without assistance. Regarding his allergy disability, the Veteran asserted that nose bleeds in the morning were not normal. He asserted that the disability had deteriorated over the previous six months. At his May 2013 hearing, the Veteran testified credibly that his back disability had worsened, and that he had flare ups one to two times per month. He stated that he missed work due to the disability. He also stated that he had pain radiating into his legs. With respect to his hips, he indicated that prescribed pain medication did not alleviate his pain. Regarding his allergies, the Veteran described the medications he took and indicated that he often had blockage in at least one nostril. The Board observes that VA examinations were most recently conducted in July 2011. However, through his written statements and testimony, the Veteran asserts that the disabilities at issue have become worse. Moreover, records of private treatment dated since the July 2011 examinations show that the Veteran has been seen for complaints relating to the disabilities at issue. VA's duty to assist includes the conduct of a contemporaneous medical examination, in particular where it is contended that a disability has become worse. See Littke v. Derwinski, 1 Vet. App. 90, 92 (1990); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (finding that a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). In light of the above discussion, the Board has determined that additional action is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the severity of his service-connected low back and bilateral hip disabilities. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should also elicit a complete history from the Veteran, the pertinent details of which should be included in the examination report. For the back and hips, the examiner should report the results of range of motion testing and comment on any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner's report should include a description of the above factors that pertain to functional loss due to the low back and hip disabilities that develops on repetitive use or during flare-up. The examiner must express an opinion as to whether there is ankylosis of any portion of the thoracolumbar spine or either hip, and whether the Veteran's functional limitation of motion is analogous to ankylosis. The examiner should also describe any neurological findings associated with the Veteran's low back disability. The examiner should also describe the duration during the previous year of any incapacitating episodes caused by the Veteran's low back disability. A discussion of the complete rationale for all opinions expressed should be included in the examination report. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 2. Schedule the Veteran for a VA examination to determine the severity of his service-connected seasonal allergies. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should also elicit a complete history from the Veteran, the pertinent details of which should be included in the examination report. Following interview, examination of the Veteran, and review of the claims file, the examiner should indicate whether there are polyps associated with the Veteran's allergy disability. The examiner should also indicate whether there is obstruction greater than 50 percent of both nasal passages, or complete obstruction on one side. If sinusitis is present, the examiner should indicate the number of incapacitating episodes (lasting four to six weeks and requiring prolonged antibiotic treatment) in the previous year; or nonincapacitating episodes (characterized by headaches, pain, and purulent discharge or crusting) in the previous year. A discussion of the complete rationale for all opinions expressed should be included in the examination report. If the examiner is unable to offer any of the requested opinions, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. 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. 4. Upon completion of the examinations ordered above, review the examination reports to ensure that they address the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 5. Readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. 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). _________________________________________________ Bethany L. Buck 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).