Citation Nr: 1326103 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 11-21 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for lumbar strain and lumbar disc disease. 2. Entitlement to an initial disability rating in excess of 10 percent for right L3/L4 radiculopathy. REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney at Law ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran had active military service from April 1978 to April 1982 and July 1982 to December 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for lumbar strain and lumbar disc disease, and right L3/L4 radiculopathy, and assigned each disability a 10 percent disability rating. The Veteran appealed with respect to the propriety of the initially assigned ratings. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The appeal is REMANDED to the VA RO. VA will notify the Veteran if further action is required. REMAND A review of the record discloses that further development is necessary prior to the adjudication of the Veteran's claims of increased disability ratings for lumbar strain and lumbar disc disease, and right L3/L4 radiculopathy. The Veteran contends that his lumbar strain and disc disease and right L3/L4 radiculopathy are worse than the disability evaluations currently assigned. The Veteran was last given a VA examination in December 2009 in order to establish the severity of his above mentioned service-connected disabilities. In a September 2011 statement, the Veteran reported current symptoms of difficulty sitting upright without extreme pain, walking or standing for more than two to three minutes without extreme pain, and back spasms. Additionally, he stated that if he stood or tried walking, his lower back had sharp pains and his right leg burned. He also reported that he did not have feeling in his right leg. Further, he noted such treatment as taking Percocet every four hours for pain, monthly steroid injections for pain, and wearing a back brace. He also stated that his wife had to do everything for him because of his back pain and symptoms. Lastly, he stated that he did not know why the doctor at his last VA examination did not mention his pain when standing or walking in the report. In this particular case, the December 2009 VA examination is too remote in time to address the current severity of the Veteran's service-connected lumbar strain and disc disease, and right L3/L4 radiculopathy. See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). Therefore, the Board must remand these matters to afford the Veteran an opportunity to undergo a VA examination to assess the current nature, extent and severity of his service-connected lumbar strain and disc disease and right L3/L4 radiculopathy. A remand is also necessary to obtain outstanding VA and private medical records. On the September 2010 notice of disagreement, the Veteran requested that his medical records from the Sandusky, Ohio and Ann Arbor, Michigan VA Medical Centers (VAMCs) be obtained. Additionally, the Veteran reported that he currently sought treatment for his back conditions from Dr. Bauer in Bellevue, Ohio. However, it does not appear that these records have been obtained and associated with the claims file. Because it appears that there may be outstanding VA and private medical records that may contain information pertinent to his claim, those records are relevant and should be obtained. 38 C.F.R. § 3.159(c)(2) (2012); Bell v. Derwinski, 2 Vet. App. 611 (1992). Additionally, in a November 2011 statement, the Veteran's attorney argued that the Veteran is entitled to extra-schedular evaluations for his lumbar strain and disc disease and right L3/L4 radiculopathy. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1); see also Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Therefore, upon readjudication, the RO should consider referral for an extra-schedular evaluation is warranted for the Veteran's lumbar strain and disc disease and right L3/L4 radiculopathy. Finally, as relevant to the Veteran's back disability, the Board observes that service connection was granted effective August 7, 2000. In this regard, the schedular criteria for rating the spine have been amended twice during the rating period. The rating criteria pertaining to intervertebral disc syndrome under 38 C.F.R. § 4.71a , Diagnostic Code 5293, was amended effective September 23, 2002. See 67 Fed. Reg. 54,345 -54,349 (August 22, 2002). Second, effective September 26, 2003, the rating criteria for evaluating all spine disorders were amended. See 68 Fed. Reg. 51,454 -51,458 (August 27, 2003); see also corrections at 69 Fed. Reg. 32, 449 (June 10, 2004). While the RO considered certain aspects of the regulations that were in effect as of September 2002 and September 2003, it does not appear that consideration of the pre-September 2002 regulations or full consideration of the twice amended regulations was accomplished. Therefore, in the readjudication of the Veteran's claim, consideration should be given to all applicable rating criteria, to include those in effect prior to September 2002, as of September 2002, and as of September 2003. Accordingly, the case is REMANDED for the following action: 1) The RO should obtain any of the Veteran's outstanding VA treatment records, to include records from the Sandusky, Ohio and Ann Arbor, Michigan VAMCs. Any attempts to obtain these records and responses received thereafter should be associated with the Veteran's claims file. The RO should contact the Veteran and request that he provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any treatment records from any private medical providers, who have treated him for a lumbar spine disability and radiculopathy, including Dr. Bauer in Bellevue, Ohio. After the Veteran has signed the appropriate releases, those records not already associated with the claims file, should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. If the RO cannot obtain records identified by the Veteran, a notation to that effect should be included in the claims file and the Veteran and his representative should be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2) After completing the foregoing, the Veteran should be scheduled for an appropriate VA examination so as to determine the current level of severity of his lumbar spine strain and lumbar disc disease and right L/L4 radiculopathy. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the remand have been reviewed. All necessary tests should be conducted. 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 left lower extremity radiculopathy as a result of his back disability. With respect to the Veteran's right L3/L4 radiculopathy, the examiner should indicate whether such results in mild, moderate, moderately severe, or severe incomplete, or complete, paralysis of the affected nerve. 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 August 2000 to the present. The examiner should also address the impact of the Veteran's lumbar strain and disc disease and right L3/L4 radiculopathy on his employability. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 3) Following the completion of the foregoing, and after undertaking any other development it deems necessary, the RO should readjudicate the Veteran's claims, to include consideration as to whether referral for an extra-schedular evaluation is warranted for the Veteran's disabilities. Additionally, as relevant to the Veteran's back disability, consideration should be given to all applicable rating criteria, to include those in effect prior to September 2002, as of September 2002, and as of September 2003. If the claims remain denied, the Veteran and his attorney 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 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). _________________________________________________ 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).