Citation Nr: 1325970 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 11-31 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for a left leg disorder to include piriformis muscle syndrome, radiculopathy, and restless leg syndrome. 2. Entitlement to an initial rating in excess of 10 percent for a low back disability. ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty from August 1987 to December 2007, including service in Iraq from April 2003 to March 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. As to the Veteran's service connection claim, given the arguments found in his November 2011 VA Form 9, the Board has recharacterized this issue as it appears above so as to best reflect his intent when filing the claim. 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 As to the claim of service connection for a left leg disorder, the Veteran claims that it was either directly caused by his military service and/or due to his already service connected low back disability. In this regard, the record shows that he is service connected for a low back disability. Moreover, the Veteran is competent to report that he had problems with pain and muscle spasms in his left leg because these problems come to him through his own senses. See Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). Furthermore, the record shows his being diagnosed with at least one chronic left leg disability- piriformis muscle syndrome. Given this record, the Board finds that a remand is required to obtain needed medical opinion evidence as to the origins of his left leg disorder. See 38 U.S.C.A. § 5103A(d) (West 2002); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Also see 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (20112); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc) (holding that compensation is payable when service-connected disability has aggravated a non-service-connected disorder). As to the claim for a higher evaluation for his low back disability, the Veteran alleged, in substance, in his September 2011 notice of disagreement and November 2011 VA Form 9 that his disability has become worse since his last VA examination in November 2010. Therefore, the Board finds that a remand for a new VA examination is needed. See 38 U.S.C.A. § 5103A(d); Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that VA's duty to assist includes conducting a thorough and contemporaneous examination of the Veteran that takes into account the records of prior examinations and treatment). The Veteran receives ongoing treatment from the Columbia VA Medical Center. However, his post-August 2011 treatment records are not found in the claims file. Therefore, while the appeal is in remand status these treatment records should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(b) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Accordingly, the appeal is REMANDED to the RO/AMC for the following actions: 1. Associate with the claims file, physically or electronically, the Veteran's post-August 2011 treatment records from the Columbia VA Medical Center. All actions to obtain the requested records should be documented fully in the claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the nature, extent, frequency and severity of any orthopedic and neurologic impairment related to the Veteran's back disability and to ascertain the onset and/or etiology of any left leg disability, to specifically include piriformis muscle syndrome, radiculopathy and restless leg syndrome, found to be present. The claims folder should be made available to and reviewed by the examiner and all necessary tests should be conducted. As to the Veteran's back disability, the examiner must identify all back orthopedic pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the Veteran's back. In addition, if possible, the examiner should state whether the back disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes. Further, the examiner should also discuss the nature and severity of any right or left-sided radiculopathy or neuropathy found to be present. The examiner must also state whether the Veteran has bowel or bladder problems related to his back disability. The examiner must also indicate the impact the Veteran's back disability has on his ability to secure or follow a substantially gainful occupation. As to his left leg disability claim, including any piriformis muscle syndrome, radiculopathy, and/or restless leg syndrome, the examiner should identify all left leg disabilities found to be present or that were diagnosed during and since service. Diagnoses of left leg piriformis muscle syndrome, radiculopathy, restless leg syndrome should be ruled in or excluded. As to each diagnosed left leg disorder, the examiner must opine as to whether it is at least as likely as not related to or had its onset in service. The examiner must also opine as to whether it is at least as likely as not that any left leg disability found to be present was caused or aggravated (permanently worsened) by his service-connected back disability. If aggravation is present, the clinician should indicate, to the extent that is possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. If the examiner cannot provide an answer to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. In providing answers to the above questions, the examiner must acknowledge and discuss the Veteran's competent and credible report as to the onset of his left leg symptoms. A complete rationale for all findings and conclusions should be set forth in a legible report. 4. Then readjudicate the appeal. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits to include a summary of the evidence received, and any evidence not received, and all applicable laws and regulations considered pertinent to the issues currently on appeal. A reasonable period of time should be allowed for response before the appeal is returned to the Board. 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). These claims 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). _________________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).