Citation Nr: 1325006 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 09-22 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an effective date prior to November 10, 2005, for service connection for postoperative residuals of lumbar spine degenerative disc disease (DDD) with herniation at L4-5. 2. Entitlement to an initial rating in excess of 10 percent for postoperative residuals of DDD of the lumbar spine with herniation at L4-5. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from December 1965 to February 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board has conducted a review of both the paper claims file and a review of the Virtual VA paperless claims processing system. Historically, prior rating decisions denied service connection for a low back disorder and reopening of that claim. Subsequently, a December 2007 rating decision, of which the Veteran was notified and which is appealed, granted service connection for postoperative residuals of DDD of the lumbar spine with herniation at L4-5 and assigned an initial 10 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5242, effective November 10, 2005 (date of receipt of the application to reopen the claim). The Board notes that, in the Veteran's notice of disagreement (NOD) and in his VA Form 9, Appeal to the Board, he alleged that he was entitled to an earlier effective date for service connection for postoperative residuals of lumbar DDD with L4-5 herniation because of clear and unmistakable error (CUE) in past rating decisions. Specifically, in a statement dated April 2008, the Veteran stated that November 2002, April 1993, and February 1995 rating decisions contained CUE. He alleges that, although those rating decisions stated that the back disorder was not on separation examination, it "was and is part of my service records, service medical records, and my claims folder, while in service and in the Naval Hospital." Thus, the Board finds that the Veteran has reasonable raised claims of CUE in the prior identified rating decisions. However, these matters have not yet been addressed by the agency of original jurisdiction (AOJ). Therefore, the Veteran's claims for CUE in rating decisions dated February 15, 1974; April 7, 1993; April 21, 1993; and November 19, 2002 are hereby referred for appropriate 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 With regard to the claim for entitlement to an effective date prior to November 10, 2005, for service connection for postoperative residuals of lumbar spine DDD with herniation at L4-5, the Board finds that this issue is intertwined with the referred claims for CUE in February 15, 1974; April 7, 1993; April 21, 1993; and November 19, 2002 rating decisions. A finding of CUE in any of the above-mentioned rating decisions will greatly impact the adjudication of the Veteran's earlier effective date claim. As such, adjudication of the Veteran's earlier effective date claim must be deferred pending RO adjudication of the CUE claims. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). With regard to the initial rating claim, the Board finds that a new VA examination is warranted because the existing physical examination in April 2007 is not adequate for rating purposes. In this regard, the examination identified abnormal findings of the lower extremities; vibration, pain on pinprick, light tough, and position sense of the lower extremities were all noted to be 0/2, with "0" meaning "absent." Because the purpose of the April 2007 VA examination was to assess the etiology of the Veteran's low back disability and whether it was related to service, no opinion was provided as to whether these abnormalities were manifestations of the Veteran's low back disorder or some other cause (in this regard, the Board notes that treatment records indicate the presence of diabetic neuropathy). Crucially, the Board is precluded from differentiating between symptomatology attributed to different disabilities in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Thus, on remand, the Veteran should be afforded a new VA examination, and the examiner is directed to expressly identify all neurological abnormalities that are manifestations of the Veteran's low back disability as opposed to some non-service-connected disorder. Moreover, the April 2007 examiner also noted that range of motion testing could not be completed because the Veteran was confined to a wheel chair and is unable to flex or bend his upper trunk while standing without falling. It was further noted that his confinement to a wheel chair since 2000 was due to his diabetes. Although this certainly presents a difficulty in assessing the current severity of the Veteran's low back disorder, the Board finds that an opinion would be useful to ascertain whether the VA examiner can more adequately describe the Veteran's functional ability with regard to the spine. In this regard, it is requested that the examiner offer an opinion as to whether the Veteran's back disability would result in any functional loss of range of motion of the spine and, if so, the examiner is requested to approximate the functional loss in terms of degrees to the fullest extent possible. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should adjudicate the referred claims for CUE in February 15, 1974; April 7, 1993; April 21, 1993; and November 19, 2002 rating decisions. Notice of the determination, and his appellate rights, should be provided to the Veteran and his representative. 2. Schedule the Veteran for orthopedic and neurologic examinations to assess the nature and severity of his service-connected postoperative residuals of lumbar spine DDD with herniation at L4-5. The claims file should be provided to and reviewed by the examiner(s) in conjunction with the examination. A report of the examinations should be prepared and associated with the Veteran's VA claims file. (a) The examiner is requested to provide an opinion as to whether any neurological abnormalities are manifestations of his spine disability; and (b) The VA examiner is directed to offer an opinion as to whether the Veteran's low back disability results in any functional loss of range of motion of the spine. To the extent possible, the examiner is directed express that degree of functional impairment in terms of additional degrees of limitation of motion. Even if physical testing is precluded by the Veteran's confinement to a wheel chair, the examiner should nonetheless discuss the presence or absence of flare-ups of pain, weakness, excessive fatigability with use, incoordination, painful motion and pain with use, and offer an opinion as to whether these factors produce any additional functional impairment. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. In any requested opinion cannot be provided without resort to mere speculation, the examiner should so state and explain why an opinion cannot be provided. 3. Following completion of the above, the AOJ should readjudicate the issues of entitlement an effective date prior to November 10, 2005, for service connection for postoperative residuals of lumbar spine DDD with herniation at L4-5 and entitlement to an initial rating in excess of 10 percent for postoperative residuals of DDD of the lumbar spine with herniation at L4-5. If the claims on appeal are not fully granted, a Supplemental Statement of the Case should be furnished to the Veteran and his representative, and an appropriate period of time should be provided for response. 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). These claims 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. GIELOW Acting 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).