Citation Nr: 1325007 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 09-19 177 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a rating in excess of 40 percent for chronic lumbar muscle strain superimposed on degenerative disc instability. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from November 1969 to December 1989. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a rating decision issued in June 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied a rating in excess of 40 percent for the Veteran's back disability and denied service connection for asthma and coronary artery disease. The Veteran perfected an appeal as to all three issues. In a May 2009 substantive appeal (VA Form 9), the Veteran requested a Board hearing before a Veterans Law Judge sitting at the RO. In a May 2013 letter, he was informed that his requested hearing had been scheduled for June 2013. However, in a statement received later in May 2013, he withdrew his request for a Board hearing and indicated that he wished for his case to be forwarded to the Board for a decision. 38 C.F.R. § 20.704(e) (2012). In an October 2012 rating decision, the RO granted service connection for asthma and coronary artery disease. As such was a full grant of the benefits sought on appeal with respect to such issues, they are no longer properly before the Board. The Board observes that, subsequent to the issuance of the May 2009 statement of the case, additional records primarily addressing the Veteran's asthma and coronary artery disease were associated with the claims file. However, such also demonstrate findings referable to the back. These records were not considered in the October 2012 supplemental statement of the case. However, as the Veteran's claim is being remanded, the agency of original jurisdiction will have an opportunity to review all the submitted documents such that no prejudice results to the Veteran in the Board considering such evidence for the limited purpose of issuing a comprehensive and thorough remand. In addition to the paper claims file, there are paperless, electronic (Virtual VA and Veterans Benefits Management System) claims files associated with the Veteran's claims. Neither electronic file contains additional evidence pertinent to the claim on appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). As an initial matter, the Board finds that a remand is necessary in order to obtain outstanding treatment records. In this regard, in a November 2009 communication, the Veteran reported that he received an MRI (magnetic resonance image) in September 2009 at the Roseburg, Oregon, VA Medical Center, and had an appointment that day at White City, Oregon, VA Medical Center to discuss the results. While the September 2009 MRI report is of record, the November 2009 treatment record is not. Additionally, the October 2012 supplemental statement of the case indicated that VA treatment records dated from January 2009 to May 2010 from the Portland, Oregon, VA Medical Center were considered. However, the most recent treatment records contained in the claims file are dated in June 2009 and from the White City facility. Therefore, on remand, all outstanding VA treatment records from the Roseburg, White City, and Portland VA facilities should be obtained, to specifically include the November 2009 White City record detailing the results of the September 2009 MRI, records dated from January 2009 to May 2010 from the Portland facility, and all VA treatment records dated from June 2009 to the present. Additionally, the record reflects that the Veteran receives private treatment. Therefore, while on remand, he should be requested to identify any outstanding treatment records referable to his back and, thereafter, all identified records, to include those previously mentioned, should be obtained for consideration in his appeal. The Board further finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his back disability. The Veteran was most recently examined by VA in April 2009. At such time, the examiner noted reduced chest expansion suggesting a diagnosis of rheumatoid spondylosis with possible nerve root irritation that would be best evaluated further by neurologic and rheumatologic consultations. In June 2009, the Veteran's VA primary care physician determined that a rheumatology consultation was not indicated but ordered another set of neurologic tests. In July 2009, the same VA neurologist noted the Veteran's report that his bilateral lower extremity pain and numbness had become constant in the past four months. On examination, there was reduced vibration and position sense in the lower legs and feet. A repeat electromyogram showed moderately severe generalized demyelinating length dependent neuropathy. The physician diagnosed peripheral neuropathy at least in part related to service-connected diabetes. Service connection for peripheral neuropathy of the left and right lower extremities as secondary to service-connected diabetes mellitus type II was subsequently granted in an August 2009 rating decision and 20 percent evaluations for each extremity based on severe incomplete paralysis of the musculocutaneous nerve (superficial peroneal) were assigned pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8522, effective May 11, 2009. Thereafter, in September 2009, a MRI showed degenerative disc disease localized to the L5-S1 level with a bulging disc compressing the nerve root on the left side. As such, based on the Veteran's lower extremity complaints and the MRI findings, it is unclear whether he has radiculopathy associated with his back disability. In this regard, while service connection for peripheral neuropathy of the bilateral lower extremities has been granted as secondary to diabetes mellitus, the rating criteria pertinent to evaluating the Veteran's back disability provides that associated objective neurologic abnormalities are evaluated separately. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Diagnostic Codes 5237, 5242, Note 1. Additionally, it has been more than four years since his April 2009 VA examination. Therefore, a contemporaneous VA examination is necessary to determine the current nature and severity of the Veteran's back disability, to include whether he has radiculopathy, or other neurological impairment, associated with such disability. Finally, as noted in the Introduction, additional evidence was associated with the claims file after the issuance of the May 2009 statement of the case that was not considered in the October 2012 supplemental statement of the case. Therefore, in the readjudication of the Veteran's claim, all such evidence should be considered. 38 C.F.R. § 19.31. Accordingly, the case is REMANDED for the following action: 1. The Veteran also should be given an opportunity to identify any healthcare provider who treated him for his service-connected back disability. After securing any necessary authorization from him, obtain all identified treatment records, to include all outstanding VA treatment records from the Roseburg, White City, and Portland VA facilities, to specifically include the November 2009 White City record detailing the results of the September 2009 MRI, records dated from January 2009 to May 2010 from the Portland facility, and all VA treatment records dated from June 2009 to the present. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After obtaining all outstanding treatment records, the Veteran should be afforded an appropriate VA examination so as to determine the current nature and severity of his back disability. The claims file and a copy of this Remand must be made available to the examiner, and the examiner shall indicate in the report that the claims file was reviewed. All indicated tests and studies should be undertaken. The examiner should describe the nature and severity of all manifestations of the Veteran's back disability. In this regard, the examiner record the range of motion observed on clinical evaluation, in terms of degrees of extension, forward flexion, left and right lateral flexion, and left and right rotation. If there is clinical evidence of pain on motion, the examiner should indicate the degree of flexion, extension, and/or rotation at which such pain begins. Then, after reviewing the Veteran's complaints and medical history, the examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the Veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. If range of motion is not possible, the examiner should indicate whether the Veteran has unfavorable of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. The examiner should also state whether the Veteran's service-connected back disability is manifested by any neurological impairment, and, if so, which nerves are involved, and the extent of the impairment. The examiner should specifically indicate whether the Veteran has bowel or bladder impairment, erectile dysfunction, and/or bilateral lower extremity radiculopathy as a result of his back disability. If radiculopathy is present, the examiner should provide an opinion as to the earliest date that such was present. Additionally, the examiner, to the extent possible, should separate out the manifestations associated with the radiculopathy from those associated with the Veteran's service-connected diabetic neuropathy of the bilateral lower extremities. The examiner should also state whether the Veteran has intervertebral disc syndrome (IVDS). If so, state whether IVDS results in incapacitating episodes, and if so, the duration of the episodes over the past 12 months. This should also be addressed for each year beginning in October 2005 to the present. Finally, the examiner should indicate the impact that the Veteran's back disability has on his employability. The rationale for any opinion offered should be provided. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the May 2009 statement of the case. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ A. JAEGER 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).