Citation Nr: 1327559 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 12-17 706 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an increased rating for chronic low back/middle back syndrome also claimed as a condition of the skeletal system, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Alpha, Veterans Disability Advocates ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served in the Navy on active duty from July 1989 to August 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The RO denied an increase of the current 10 percent disability rating. 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 After having carefully considered the matter, the Board believes the Veteran's claim must be remanded for further procedural development. It is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. There is some ambiguity in the record concerning the nature and severity of the Veteran's service connected back disabilities. At various times, his outpatient treatment records note mild scoliosis, muscle spasm, abnormal gait, and compromised posture; however, in contrast, the Veteran was noted at other times to have normal spinal contour, posture, and gait. Moreover, muscle spasm is reported consistently, except for the March 2011 VA examination. The presence and severity of muscle spasm is relevant as muscle spasm or guarding severe enough to lead to abnormal gait or abnormal spinal contour may lead to a higher disability evaluation. According, remand is required to determine the level of severity of the Veteran's service connected back disability. Additionally, as the Veteran contends, the March 2011 VA examination did not adequately discuss the DeLuca factors. When evaluating a musculoskeletal disability based upon range of motion, consideration is given to the degree of any additional limitation upon motion due to functional loss. This includes an analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, particularly during times when symptoms "flare up." See DeLuca v. Brown, 8 Vet. App. 202 (1995). In the diagnosis section of the March 2011 examination, the examiner notes that: "The subjective factors are: history of fall into a tugboat, stiffness, fatigue and pain on exertion. The objective factors are: tenderness on vertebrae, restricted range of motion due to pain and stiffness." However the examiner does not provide an explanation or opinion as to how these factors affect the Veteran's range of motion. With respect to the Repetitive Range of Motion Test, the examiner simply notes that "repetitive range of motion of the lumbar spine is not possible because increased tenderness and stiffness," and provides no further explanation. Causing further confusion is the Veteran's initial forward flexion range of 82 degrees, close to the normal range of 90 degrees, followed by an inability to perform the repetitive range of motion test. It is unclear, and unexplained by the examiner, why there was such a drastic change in range of motion. Due to the uncertainty resulting from the VA treatment records and the March 2011 VA examination, the Board holds that a new examination is necessary which properly discusses the DeLuca factors and other previously noted issues such as muscle spasm, spinal contour, posture, and gait. The Board also finds that a total disability rating due to individual unemployability resulting from service connected disability (TDIU) claim has been inferred from the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). In a March 2011 statement, the Veteran's wife alleged that the Veteran's condition has not only "affected him physically and emotionally but has caused our financial circumstances to lessen drastically as he cannot work." The wife also mentions that they are currently using food stamps. While use of food stamps is not dispositive of unemployment, it is an indication of economic difficulty. The record is unclear as to whether the Veteran is currently employed and whether the Veteran's current condition makes him unemployable. As a result, further development into this is necessary. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability). 2. Schedule the Veteran for a new VA examination by an appropriate medical professional for the purpose of ascertaining the extent of the Veteran's current back disability and the effect of the Veteran's current disability on his employability. The examiner should discuss in detail the severity of the Veteran's back disability to include the severity and duration of any symptomatology associated with the Veteran's service connected back disability. In particular, the examiner should: a) Provide range of motion findings with discussion of the DeLuca factors and explain their effect on any additional functional limitation. b) Describe in detail any neurological manifestations resulting from the Veteran's service connected back disability. c) Provide a reasoned explanation as to the effect of the Veteran's current disability on his employability. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. After the requested records review and opinion are completed, the report should be reviewed to ensure complete compliance with the directives of this remand. If the report is deficient in any manner, it should be returned to the reviewing personnel. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After undertaking any other development deemed appropriate, the RO will re-adjudicate the issues on appeal. If any benefit sought is not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further 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). 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). _________________________________________________ DAVID L. WIGHT 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).