Citation Nr: 1324776 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 10-06 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an increased rating for low back disability, currently evaluated as 60 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thomas H. O'Shay, Counsel INTRODUCTION The Veteran had active service from August 1969 to February 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The record reflects that the Veteran requested, and was scheduled for a Board videoconference hearing, but that he failed, without explanation, to attend the December 2010 hearing. His request for a Board hearing thus is considered withdrawn. 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 contends that the evaluation currently assigned his service-connected lower back disability does not accurately reflect the severity of that disorder. The back disorder at issue is currently evaluated as 60 percent disabling, which is the maximum schedular evaluation possible, absent unfavorable ankylosis of the entire spine. Service connection has been denied for cervical spine disability, and that matter is not before the Board for appellate review. Aside from the schedular evaluation assignable for the lower back disorder, the pertinent rating criteria specify that any associated objective neurologic abnormalities are to be evaluated separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, Note (1) preceding Diagnostic Code 5235. In addition, if there is scarring associated with a disorder, consideration must be given as to whether a separate evaluation is warranted for such scarring. See Esteban v. Brown, 6 Vet. App. 259 (1994). Historically, the record shows that the Veteran underwent a laminectomy in service, in part due to the presence of right L5 nerve root neuropathy and an absent anterior tibial reflex on the left. The surgery alleviated the neuropathy, and resulted in a 12-centimeter surgical scar that was moderately tender. When examined after service by VA in March 1977, he demonstrated diminished deep tendon reflexes on the right, and absent reflexes on the left; the examiner concluded that there were neurologic deficits in the lower extremities that he suggested were the postoperative residuals of the back surgery in service. During a February 1979 VA examination, his deep tendon reflexes were normal, and the examiner found no evidence of neurologic abnormalities. On numerous VA examinations thereafter attended by the Veteran, his deep tendon reflexes were generally described as diminished to absent. Of potential significance, VA treatment records show that the Veteran has developed circulation problems. An October 2008 leg circulation study reportedly demonstrated evidence of poor circulation in his right leg; a February 2009 vascular surgery consultation noted that the Veteran had femoral artery disease and reduced digit pressure in the right lower extremity. In November 2008 the Veteran attended a VA neurology consultation, at which time he reported a recent history of a "dead" feeling in his right leg. He demonstrated some right hip algesia to pinprick, absent left ankle reflexes, and diminished right ankle reflexes. The examiner believed that the absent left ankle reflexes were associated with the service-connected lower back disorder. During a March 2009 VA examination, the Veteran reported experiencing symptoms including numbness, paresthesias and weakness of the lower extremities, which the examiner believed were related to the service-connected lower back disorder. Physical examination, however, demonstrated the absence of any atrophy, spasm, abnormal muscle tone, or sensation abnormalities. The examination did demonstrate diminished ankle reflexes. Diagnostic testing revealed minimal neural foraminal narrowing. During a December 2010 VA examination (the focus of which was on the cervical spine), the Veteran was noted to have absent ankle reflexes, without any atrophy or weakness. Neither examination addressed the scar associated with the Veteran's back surgery. Given the conflicting nature of the evidence concerning whether the Veteran in fact has a neurological disorder affecting either lower extremity, and, if so, whether such disorder is associated with the service-connected lower back disability, the Board finds that additional VA examination is necessary. Such examination should also address any limitations or disability associated with the low back scar resulting from the surgery in service. Accordingly, this case is REMANDED to the RO/AMC for the following actions: 1. The RO/AMC should arrange for VA orthopedic and neurologic examinations of the Veteran by examiners with appropriate expertise to determine the nature, extent and severity of the Veteran's service-connected low back disability. All indicated studies, including range of motion studies in degrees, and electrodiagnostic studies should be performed. The examiners should specifically describe the scar associated with any low back surgery, and provide findings as to each of the following: A. Is the scar unstable or painful? B. Is the scar deep (i.e., associated with underlying soft tissue damage) or superficial (i.e., not associated with underlying soft tissue damage)? C. Is the scar linear or non-linear? D. What is the area, in square centimeters or inches, of the scar? The neurological examiner should specifically identify any associated objective neurologic abnormalities, to include of either lower extremity, and should set forth findings relative to any such neurologic impairment evident from the Veteran's intervertebral disc syndrome (IVDS). Any abnormal nerve findings due to IVDS should be described in detail and the degree of paralysis, neuritis or neuralgia should be set forth (i.e. mild, moderate, severe, complete). The examiners should also provide an opinion as to the impact of the Veteran's low back disability on his employability. The rationale for all opinions expressed should be explained. The claims files must be made available to and reviewed by the examiners. The examination reports are to reflect that such a review of the claims files was made. 2. The RO/AMC should then readjudicate the issue on appeal. In doing so, the RO/AMC should consider whether separate evaluations are warranted for any neurologic abnormalities associated with the lower back disorder, and whether a separate evaluation is indicated for the scarring associated with the lower back disorder. The RO/AMC should also consider whether the case should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. If the benefit sought on appeal is not granted in full the RO/AMC must issue a supplemental statement of the case, and provide the appellant and his representative an opportunity to respond. After the Veteran and his representative have been given an opportunity to respond to the supplemental statement of the case and the period for submission of additional information or evidence set forth in 38 U.S.C.A. § 5103(b) (West 2002) has expired, if applicable, the case should be returned to the Board for further appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the Veteran until he is notified by the RO/AMC. The Veteran and his representative have the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).