Citation Nr: 1325475 Decision Date: 08/12/13 Archive Date: 08/16/13 DOCKET NO. 07-27 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office and Insurance Center in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased initial disability rating for lumbosacral spine degenerative disc disease (DDD), with spondylolysis and reports of occasional radiation to the lower extremities, higher than 10 percent from July 14, 2006 to January 28, 2009, 20 percent from January 29, 2009 to September 26, 2012, and 40 percent from September 27, 2012. REPRESENTATION Appellant represented by: Veterans of the Vietnam War, Inc. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The Veteran served on active duty from August 1984 to July 1986 and from January 2005 to July 2006, including service in Iraq. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office and Insurance Center (RO) in Philadelphia, Pennsylvania, that granted service connection for lumbosacral strain and assigned a 10 percent disability evaluation, effective July 14, 2006. Subsequently, in an April 2009 rating decision, the RO increased the Veteran's disability rating for his service-connected DDD of the lumbosacral spine to 20 percent, effective January 29, 2009. However, as this increased evaluation did not constitute a full grant of the benefits sought on appeal, his claim remained in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). The Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge in September 2009. A transcript of that hearing is of record. In February 2010, and again in September 2012, the Board remanded the Veteran's claim on appeal to the RO via the Appeals Management Center (AMC), in Washington, D.C., for further development. In a March 2013 rating decision, the AMC granted a 40 percent rating for the Veteran's service-connected low back disability, effective from September 27, 2012. At that time, the AMC also granted service connection for radiculopathy of the right lower extremity that was assigned an initial 20 percent rating, also effective from September 27, 2012. For the reasons described below, the appeal is again REMANDED to the RO via the AMC. VA will notify the Veteran if further action is required on his part. REMAND During the Veteran's September 2012 VA examination, the examiner noted the Veteran's report of having flare-ups every one to two weeks, and that these flare-ups lasted anywhere from a few days up to a week or two with one flare in 2101 lasting three months. The examiner further noted that the Veteran reported that excessive walking or prolonged standing or sitting precipitated the flare-ups, and medications alleviating them. However, the examiner failed to note any details as to the extent of the Veteran's service-connected back disability during flare-ups or the degree of functional impairment during these flare-ups. The Veteran's flare-ups appear to occur with sufficient frequency and to be of sufficient duration to allow for the Veteran to be examined during a flare-up, so that the extent of disability during flare-up may be evaluated. Accordingly, VA case law dictates that appropriate efforts be undertaken to evaluate the Veteran's disability during such a flare-up. See Ardison v. Brown 6 Vet. App. 405, 407 -08 (1994) (to the extent possible, VA should schedule an examination for a condition that has cyclical manifestations during an active stage of the disease to best determine its severity); cf. Voerth v. West, 13 Vet. App. 117, 123 (1999) (a new VA examination for flare-ups of short duration would be impractical). The VA examiner also noted additional limitation in the Veteran's lumbar spine range of motion, and no functional loss/or functional impairment of the back. The VA examiner noted that the Veteran had pain on movement. See e.g., Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (to the effect that a VA examination is inadequate if it does not report the extent of additional limitation caused by pain). Also during the September 2012 VA examination, the Veteran indicated that his claimed back disability was manifested by incapacitating episodes which the examiner estimated required four to six weeks per year of bed rest such as would be prescribed by a physician, based on severity of disability. The Board, in its September 2012 remand, requested that efforts be made to obtain records from indicated private treating physicians. The Veteran, in October 2012, provided the requested authorizations to obtain those records. However, while obtained private medical records include both treatment records and operative reports, they do not include records reflecting prescribed bed rest for the Veteran's low back disorder. Upon remand, the Veteran should be asked to provide clinical records or a medical opinion letter addressing such periods of incapacity and any necessitated bed rest, in furtherance of his increased rating claim. Treatment records also reflect that the Veteran has been followed for a neurofibroma at the L1-L2 level extending into the L1-L2 foramen, but without assessed neural encroachment. A January 2012 private follow-up MRI record affords an assessment of the lesion. Private records reflect that the lesion is asymptomatic, but recommend excision in the short term. Upon remand, any additional records addressing the neurofibroma, and procedures undertaken should be obtained, as these are potentially relevant to the low back disorder claim. Finally, the March 2013 supplemental statement of the case (SSOC) incorrectly characterizes the issue on appeal as entitlement to an increased initial rating for lumbosacral spine DDD, with spondylolysis, rated as 10 percent disabling prior to January 29, 2009, and as 40 percent disabling thereafter (see SSOC at page 1). However, the first sentence of the Reasons and Bases section correctly states that "[t]he evaluation of lumbosacral spine [DDD] with spondylolysis is increased to 40 percent...assigned from September 27, 2012." (Id. at 7) On remand, the Veteran should be provided with a SSOC that correctly characterizes the issue on appeal, including all the staged ratings for his service-connected low back disability. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his representative, if necessary, and verify once again the Veteran's correct mailing address. Efforts to verify his address should be documented in the claims file. Afford the Veteran the opportunity to submit additional evidence or argument in furtherance of the appealed claim. 2. Ask the Veteran to assist in obtaining any records which may reflect prescribed bed rest for his low back disorder, to including any medical letters which may be addressed to employers, any other medical record(s) which he may obtain from a treating medical practitioner addressing the issue, and any employment records reflecting his time off from work for bed rest due to his service-connected low back disorder. All requests, responses, and records received should be associated with the claims file. 3. After obtaining the requisite release forms from the Veteran, efforts should be made to obtain any medical records regarding his treatment from both VA and private sources which have not yet been associated with the claims file, including additional recent records, inclusive of more recent records of treatment, evaluation, or surgery, for the Veteran's neurofibroma at the L1-L2. This may include records from previously noted private sources, including Dr. Jon Olenginski, Nanticoke Medical Center, 4 E. Main Street, Nanticoke, PA 18634; Carlo M. de Luna, M.D., Penn State Neurosurgery at Wyoming Valley, 545 N. River St., Suite 240, Wilkes-Barre, PA 18702; Dong-Joon Oh, M.D. and Dasa Satyam, M.D., Keystone Pain Center, Thomas P. Saxton Pavilion, 468 Northampton St., Suite 103, Edwardsville, PA 18704; and any additional VA or non-VA health care provider identified by the Veteran. 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) (West 2002 & Supp. 2012) and 38 C.F.R. § 3.159(e) (2012). 4. After the development requested above is accomplished, schedule the Veteran for an orthopedic and neurologic VA examination (preferably performed by a physician, if available) during a flare-up, to assess the current severity and all manifestations of his service-connected lumbosacral spine disability. All reasonable efforts should be undertaken, in coordination with the Veteran, to arrange this examination at a time when the Veteran is experiencing a flare-up of symptoms of low back disability. The record should reflect such efforts to arrange an examination during such flare-up, with documentation of efforts to coordinate the examination timing with the Veteran. If an examination cannot be arranged during a flare-up, then no examination is required, because the absence of examination during flare-up was the crucial deficiency in the VA examination conducted in September 2012. The claims file and a complete copy of this REMAND should be made available to and reviewed by the examiner(s). All indicated tests and studies, including x-rays if indicated, should be conducted, and all clinical findings reported in detail. The examiner(s) should expressly address the nature of the current flare-up. The examination of the spine should include range of motion studies. Whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. If feasible, these determinations should be expressed in terms of the degree of additional range of motion loss. The examiner(s) should specifically state if ankylosis and muscle spasm are present. The examiner(s) should report any specific information as to the frequency and duration of incapacitating episodes in the past 12 months, and a description of all neurologic manifestations, to include, but not limited to, radiating pain into an extremity, and bowel or bladder impairment. The examiner(s) should comment on the impact his service-connected DDD with spondylolysis and reports of occasional lower extremity radiation has on his ability to work, if any. The examiner(s) should attempt to distinguish the impairment related to his service-connected disability and other nonservice-connected disabilities. The examiner(s) should provide supporting rationale for this opinion. With regard to any neurological disability resulting from the service-connected lumbar disability, the specific nerve(s) affected should be specified, together with the degree of paralysis caused by service-connected disability. The examiner(s) must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. Readjudicate the Veteran's claim for an increased initial disability rating for lumbosacral spine DDD, with spondylolysis and reports of occasional radiation to the lower extremities, higher than 10 percent from July 14, 2006 to January 28, 2009, 20 percent from January 29, 2009 to September 26, 2012, and 40 percent from September 27, 2012. If the claim is not granted in full, provide the Veteran and his representative with a SSOC, and after they have had an adequate opportunity to respond, return this issue to the Board for further appellate review. No action is required of the Veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655 (2012). The appellant 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). CONTINUED ON NEXT PAGE 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). _________________________________________________ D. J. DRUCKER 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).