Citation Nr: 1325317 Decision Date: 08/09/13 Archive Date: 08/13/13 DOCKET NO. 01-05 771 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to an increased disability rating greater than 40 percent for the service-connected chronic lumbosacral strain with degenerative disc disease. REPRESENTATION Appellant represented by: Jeany Mark, Attorney at Law ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service in the U.S. Army from December 1967 to July 1970. The issue on appeal initially came to the Board of Veterans' Appeals (Board) from a March 2001 rating decision issued by the RO. In a September 2004 decision, the Board remanded the case to the RO for additional development. After completion of this development by the RO, the case was returned to the Board for the purpose of appellate disposition. In a February 2007 decision, the Board denied the Veteran's claim for an increased rating greater than 40 percent for the service-connected lumbar spine disability. However, the Veteran appealed the decision as to the denial of the increased rating issue above 40 percent for a lumbar spine disorder to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a November 2008 Court Order and Joint Motion to Vacate, the Court vacated the Board's decision as to the increased rating issue for a lumbar spine disorder and remanded this issue for compliance with specific instructions. Upon return of the case to the Board, in a November 2009 decision, the Board remanded the case to the RO for additional development. After completion of this development by the RO, the case was returned to the Board for the purpose of appellate disposition. In a March 2012 decision, the Board again denied the Veteran's claim for an increased rating greater than 40 percent for the service-connected lumbar spine disability at issue. However, the Veteran once again appealed the Board's decision to deny the increased rating issue to the Court. Pursuant to an October 2012 Court Order and Joint Motion for Remand, the Court vacated the Board's decision as to the claim for increase and remanded this issue for compliance with specific instructions. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The appeal is being remanded to the RO in Columbia, South Carolina. VA will notify the Veteran if further action is required on the Veteran's part. REMAND First, according to the October 2012 Order and Joint Motion for Remand, the Court directed the Board to comply with VA's duty to assist by remanding the increased rating claim to obtain a new VA examination that is adequate in evaluating the severity of the service-connected lumbar spine disability on appeal. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). Specifically, the Court explained that the previous June 2010 VA examination and addendum were inadequate because the VA examiner in several instances contradicted his previous findings. For example, the VA examiner's addendum stated that Veteran denied any spine-related subjective complaints, but the main report indicated that Veteran complained of "pain all day, every day." The addendum also stated that Veteran used no spine-related assisted devices, but the main report noted the use of a back brace. Under section 5103A(d), the Secretary's duty to assist includes providing a medical examination when such examination is necessary to make a decision on the claim. 38 U.S.C. § 5103A(d)(1); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991). A medical opinion is adequate "where it is based on consideration of the Veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407 (1994)) (internal quotation marks omitted); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) ("most of the probative value of a medical opinion comes from its reasoning," and that "[t]he Board must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion"). In addition, the Veteran continues to assert that his low back disability has worsened. See e.g., April 2013 attorney letter. The record is inadequate and the need for a contemporaneous examination occurs when the evidence indicates that the current rating may be incorrect. 38 C.F.R. § 3.327(a) (2012). See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Therefore, the Board is remanding the increased rating claim in order to obtain a new VA examination to rate the current extent and severity of the Veteran's service-connected lumbar spine disability. Second, complete VA treatment records on file only date to October 2011. Since the Board is already remanding the claim for a new VA examination, if the Veteran has since received additional relevant treatment, these records should be obtained. VA's duty to assist includes obtaining records of relevant VA medical treatment. 38 U.S.C.A. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2), (c)(3). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA is charged with constructive, if not actual, knowledge of evidence generated by VA). Accordingly, the case is REMANDED for the following action: 1. The RO should take all indicated action to obtain copies of all records of relevant VA medical treatment dated after October 2011, including records from the VA Medical Center (VAMC) in Charleston, South Carolina. All attempts to secure these records, and any response received, must be documented in the claims file. If no records are available, a response to that effect is required and should be documented in the file. 2. After securing VA treatment records and any other additional evidence, the RO should have the Veteran scheduled for a VA examination to ascertain the current severity of the service-connected lumbar spine disability. The purpose of this examination is to determine the current nature and extent of his lumbar spine disability, its effect on his occupational and social functioning, and its impact on his daily activities. The examination should include any diagnostic testing or evaluation deemed necessary, including X-rays. The Veteran must be advised that failure to report for a scheduled VA examination without good cause shown may have adverse consequences for his claim. The claims folder must be made available for review for the examination and the examination report must state whether such review was accomplished. The following considerations will govern the examination: (a) For the low back, the examiner must provide a diagnosis for each disease or injury of the low back and lower extremities noted on examination. (b) For the low back, the examiner must report the complete range of motion findings for the low back disability. In providing this objective information, the examiner must indicate whether there is additional range of motion loss attributable to functional loss due to any of the following: pain on use, flare-ups; weakened movement; excess fatigability; incoordination; and repetitive use. See 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995). All limitation of function must be identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. (c) For the low back, the examiner must indicate whether there is evidence supporting a diagnosis of intervertebral disc syndrome (IVDS, i.e., disc disease). If IVDS is present, the examination report must include a discussion of whether the Veteran has incapacitating episodes and their total duration (in weeks) during the last 12 months. (Note: an incapacitating episode is a period of acute signs and symptoms due to IVDS requiring bed rest prescribed by a physician and treatment by a physician.) (d) For the low back, the examiner must indicate whether there is evidence supporting a diagnosis of favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. (e) For the low back, if there is any evidence of objective neurological abnormality associated with the service-connected low back disability, such as radiculopathy, neuropathy, or sciatica affecting the lower extremities, the examiner should identify this abnormality (which nerve is affected) and comment on its severity for each lower extremity (mild, moderate, moderately severe, or severe). (f) For the low back, the examiner must indicate the effect of the service-connected low back disability on his occupational and social functioning and his ordinary activities of daily life. 3. The RO then must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing physician for corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. After completing all indicated development, the RO should readjudicate the claim for increase on appeal, in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish a fully responsive SSOC to the Veteran and his attorney and they should be afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is otherwise notified by the RO. By this action, the Board intimates no opinion, legal or factual, as to any ultimate disposition warranted in this case. The Veteran has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ STEPHEN L. WILKINS 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).