Citation Nr: 1325857 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-27 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for lumbar spasms, status post low back injury. 2. Entitlement to a separate evaluation in excess of 10 percent for right leg sciatica associated with service-connected lumbar spasms, status post low back injury. 3. Entitlement to an initial evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The Veteran had active service from October 2003 to August 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions rendered in April 2010, May 2010, and April 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 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. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. REMAND Reasons for Remand: To obtain updated VA treatment records as well as afford VA examinations and to issue a Statement of the Case (SOC) and a Supplemental Statement of the Case (SSOC). As an initial matter, the Board notes that during the pendency of the appeal for entitlement to an increased rating for the Veteran's service-connected low back disability, he filed a claim for entitlement to service connection for a right lower extremity condition in July 2010. In an April 2011 rating decision, the RO awarded service connection for right leg sciatica associated with the Veteran's service-connected back disability, assigning a 10 percent rating under 38 C.F.R. § 4.124a, Diagnostic Code 8520 from July 27, 2010. In October 2010, the RO issued a SOC that involved only the increased rating claim for the Veteran's service-connected low back disability. While the Board is cognizant that the Veteran did not file a specific notice of disagreement (NOD) concerning the assigned neurological rating for right leg sciatica associated with his service-connected low back disability, it notes that the most favorable interpretation of VA regulations involves treating the assigned neurological rating as part of the increased rating appeal for the Veteran's low back disability. The General Rating Formula for Diseases and Injuries of the Spine indicates that any associated objective neurologic abnormalities related to a thoracolumbar spine disability are to be evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). Based on the foregoing discussion, the Board will send the matters of entitlement to an evaluation in excess of 10 percent for lumbar spasms, status post low back injury, and entitlement to separate evaluation in excess of 10 percent for right leg sciatica associated with service-connected lumbar spasms, status post low back injury, back to the originating agency for readjudication pursuant to 38 C.F.R. § 19.31. A review of the record also revealed that the October 2010 SOC did not consider or identify the pertinent findings in the September 2010 VA examination report, like the lumbar spine range of motion testing results, or in the private July 2010 evaluation from P. Y., D. C. The SSOC must include consideration of the evidence referenced above as well as discussion of all pertinent evidence and applicable laws and regulations related to the Veteran's separate 10 evaluation for right leg sciatica. Additionally, the Board finds that a new VA examination(s) is warranted in this case. The Veteran was last afforded a VA examination with respect to the claims on appeal in September 2010. As the most comprehensive assessment of the Veteran's low back and right leg sciatica disabilities is nearly three years old and the evidence of record does not contemplate any recent treatment, a new examination is warranted to determine the severity of his service-connected low back and right leg sciatica disabilities. See 38 U.S.C.A. § 5103A (West 2002); see generally Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (providing that an adequate VA medical examination must consider the veteran's pertinent medical history). The claims file also reflects that the Veteran has received VA medical treatment for his service-connected low back and right leg disabilities from the VAMC and OPC in Orlando, Florida; however, as the claims file only includes treatment records from those providers dated up to July 2011, any additional records from that facility should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Finally, in a May 2010 rating decision, the RO granted entitlement to service connection for PTSD and assigned an initial 30 percent rating, effective August 20, 2007. In a July 2010 NOD contained in the record before the Board, the Veteran signaled his intention to appeal the May 2010 rating decision. He indicated that he felt he was entitled to an increased rating for PTSD. When there has been an adjudication of a claim and a NOD as to its denial, the claimant is entitled to a SOC. See 38 C.F.R. § 19.26. Thus, a remand for issuance of an SOC on the issue of entitlement to an initial evaluation in excess of 30 percent for PTSD is necessary. Manlincon v. West, 12 Vet. App. 238 (1999). This issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following actions: 1. The RO/AMC should obtain all outstanding VA treatment records pertaining to the Veteran's service-connected low back and right leg sciatica disabilities (to include those from the Orlando VAMC and OPC dated from July 2011 to the present) and associate the records with the Veteran's claims file. 2. After associating any pertinent, outstanding records, schedule the Veteran for an appropriate VA examination(s) to assess the severity of his service-connected low back and right leg sciatica disabilities. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. All necessary and appropriate tests should be performed, including range of motion tests using a goniometer and neurological evaluation concerning the lower extremities. All subjective complaints and objective findings should be documented, and all diagnoses appropriate to the Veteran's symptoms should be noted. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination, flare-ups, and repetitive motion. All symptoms should be reported in detail. 3. If the Veteran fails to report to any scheduled examination, the RO/AMC must obtain and associate with the claims files a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 4. After the above has been completed, the RO/AMC should 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 examination report does not include adequate responses to the specific findings requested, it must be returned to the examiner for corrective action. 5. After taking any other development found to be necessary, the RO/AMC should readjudicate the matters of entitlement to an evaluation in excess of 10 percent for lumbar spasms, status post low back injury, and entitlement to separate evaluation in excess of 10 percent for right leg sciatica associated with service-connected lumbar spasms, status post low back injury. If any benefit is not granted, the Veteran and his representative should be provided a SSOC and afforded an opportunity to respond before the case is returned to the Board. The SSOC must include discussion of the September 2010 VA examination findings and the private July 2010 evaluation from P. Y., D. C. as well as include discussion of all pertinent evidence and applicable laws and regulations related to the Veteran's separate 10 evaluation for right leg sciatica. 6. Thereafter, an SOC, containing all applicable laws and regulations, on the issue of entitlement to an initial evaluation in excess of 30 percent for PTSD must be issued. Manlincon, 12 Vet. App. 238. The Veteran should be advised of the time period in which to perfect his appeal. If the Veteran's appeal as to this issue is perfected within the applicable time period, this matter should be returned to the Board for appellate review. 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). _________________________________________________ KATHLEEN K. GALLAGHER 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).