Citation Nr: 1327929 Decision Date: 09/03/13 Archive Date: 09/10/13 DOCKET NO. 07-25 033 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to a rating in excess of 20 percent for a lumbar strain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1973 to July 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The case was certified to the Board by the Los Angeles, California RO. A review of the documents in the Veteran's Virtual VA electronic claims file reveals no additional documents pertinent to the current appeal. 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 The Veteran contends that his service-connected lumbar strain warrants a rating higher than 20 percent. At the Veteran's most recent VA examination in March 2011, he was diagnosed with a lumbosacral strain with degenerative arthritis, spondylosis, retrolisthesis, facet joint arthritis, status post laminectomy with a residual scar, and an intervertebral disc syndrome involving the right sciatic nerve. The Veteran has stated that his lumbar problems overall have become more severe, making it difficult for him to bend or walk, and have caused him to miss significant periods of work due to incapacitation. In June 2005, he submitted a statement indicating that in April 2005 his doctor had told him to stay home from work for two days. In the July 2007 substantive appeal, the Veteran stated that he had radiating pain and numbness in his buttocks and right leg and that he had been hospitalized numerous times due to his back, each time for a period of three to five days. At his March 2012 Board hearing, the Veteran stated that he has been prescribed bed rest due to pain by his physician and that from 2004 to 2011, he had incapacitating episodes for "three to four months at a time." The Veteran submitted new evidence at his March 2012 Board hearing indicating that he had applied for leave under the Family and Medical Leave Act (FMLA) from February to March 2010, and beginning in December 2010 due to serious personal health problems. The Veteran submitted February and March 2010 notes written by a physician at the VA Victorville Veteran's Clinic requesting that the Veteran be granted leave under FMLA due to degenerative joint disease of the spine. The Veteran also submitted numerous Absence/Tardy request forms from his employer requesting leave throughout 2010 and 2011, although the reason for this leave is not specified. The record does not, however, currently contain sufficient medical evidence to allow the inference that these absences from work were due entirely to the Veteran's service-connected lumbar strain. Moreover, the record does not currently allow the inference that all of the appellant's current back disorders are due to the service or the service connected lumbar strain. In this regard, the Board notes that the Veteran worked as a mechanic both during and after service. Moreover, according to a February 1998 VA examination report, in October 1997, the appellant developed what may have been spontaneous radicular pain while bending. The Veteran has indicated that he receives regular medical treatment for the spine from his private physician, but private medical records pertaining to the spine were last requested in March 2007. Private records from 2008 and 2009 which were acquired for a separate claim indicate that the Veteran continued to have severe low back problems and was found to have failed low back surgery. The Veteran submitted a new authorization and consent form for private medical records in November 2011; however, this form could not be utilized because it was not signed and because it listed three medical providers on a single form. (Each provider must be listed on a separate authorization form.) The new evidence submitted by the Veteran in March 2012 suggests that he has missed work due to his back pain and possibly due to incapacitating episodes, as he has averred. As private medical records may exist that would corroborate the Veteran's assertions, the Appellant should be requested to provide such medical records or to sign the necessary authorization for release of such private medical records to VA. The Veteran has also stated that he receives ongoing medical treatment for his lumbar spine at the VA Healthcare System in Loma Linda, California, and the record indicates that he has also received medical treatment at the Victorville Veteran's Clinic. The record currently includes VA treatment records from May 2005 to July 2007 and December 2010 to November 2011. 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. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). In addition to providing evidence regarding the general severity of the Veteran's spine disorder during the entire period on appeal, these records may help to corroborate his statements concerning his alleged frequent periods of incapacitation and absenteeism from work, especially regarding his treatment at the Victorville Veteran's Clinic in February and March 2010 which led to him being placed on FMLA leave. The RO/AMC should obtain from the VA Healthcare System and affiliated facilities any outstanding records of evaluation or treatment of the Veteran from July 2007 to December 2010 and since November 2011. Finally, the Veteran asserted at his March 2012 Board hearing that his lumbar strain has become worse than it was the previous year. To ensure that the evidence of record reflects the current severity of the Veteran's service-connected lumbar strain since his last VA examination in March 2011, a contemporaneous examination is warranted. Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (VA is obligated to provide a new examination when a veteran asserts that the service-connected condition has become more severe.). Accordingly, the RO/AMC should arrange for the Veteran to undergo an additional VA lumbar spine examination. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding, pertinent records of medical evaluation and treatment of the Veteran from the VA facility in Loma Linda, California, and all affiliated facilities from July 2007 to December 2010, and since November 2011. All records received should be associated with the claims file. If the RO/AMC cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 2. The RO/AMC should send to the Veteran and his representative a letter requesting that he provide sufficient information and, if necessary, authorization to enable it to obtain any additional private medical evidence pertinent to the appeal that is not currently of record. The Veteran should be specifically asked to provide medical evidence documenting his absences from work in 2010 and 2011, his application for FMLA leave in December 2010, as well as any private treatment or hospitalization for back disorders since March 2009. 3. Thereafter the RO/AMC should schedule the Veteran for a VA lumbar examination to be jointly conducted by a neurologist and an orthopedist. The examiners must first determine the etiology of any diagnosed lumbar disorder save for the service connected lumbar strain. This includes determining the etiology of any degenerative arthritis, spondylosis, retrolisthesis, facet joint arthritis, residuals of a laminectomy with a residual scar, and an intervertebral disc syndrome. For each diagnosed lumbar disorder the examiners must jointly opine whether it is at least as likely as not that the disorder is related to the appellant's active duty service. If not, the examiners must opine, for each disorder whether it is at least as likely as not that the disorder was caused or permanently aggravated by the service connected lumbar strain. A complete and well reasoned rationale must be provided for any and all opinions offered. The claims folder, to include Virtual VA and a copy of this remand, must be provided to and reviewed by the examiner as part of the examination. The examiner must specify in the report that the claims file and Virtual VA records have been reviewed. All indicated tests should be accomplished, and all clinical findings reported in detail. The examiners should then address the nature of any functional limitation due to the service connected lumbar strain, and any other lumbar disorder determined to be related to service, or determined to be permanently aggravated by the lumbar strain. Pathology caused by lumbar disorders that are NOT related to service or by lumbar disorders that are NOT aggravated by the lumbar strain must be carefully differentiated out. The examiners should conduct range of motion testing of the low back, expressed in degrees. The examiners should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with lumbar strain and any other lumbar disorder determined to be related to service, or determined to be permanently aggravated by the lumbar strain. If pain on motion is observed, the examiners must indicate the point at which pain begins. In addition, the examiners must indicate whether, and to what extent, the Veteran experiences functional loss due to his lumbar strain and any other lumbar disorder determined to be related to service, or determined to be permanently aggravated by the lumbar strain, This includes any pertinent symptoms noted above during flare-ups and/or with repeated use. To the extent possible, the examiners should express any such additional functional loss in terms of additional degrees of limited motion. Further, the examiners should indicate whether any current muscle spasm or guarding due to the lumbar strain, and any other lumbar disorder determined to be related to service, or determined to be permanently aggravated by the lumbar strain, is severe enough to result in an abnormal gait, or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The examiners should also indicate whether the Veteran suffers from lumbar ankylosis. The examiners must address any period of incapacitation, referencing both his medical records and lay statements, and set out their approximate frequency and duration, to the extent identified. The examiners are advised that the term "incapacitating episodes" is strictly defined as a period of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1 (2012). The examiners must set forth all examination findings, together with the complete rationale for the comments and opinions expressed. 4. The Veteran is to be notified that it is his responsibility to report for any examination and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 5. The RO/AMC must ensure that all medical examination reports and opinion reports comply with this remand and the questions presented in the request. The RO/AMC must ensure that all examiners documented their consideration of any records contained in Virtual VA. If any report is insufficient, it must be returned to the examiner for necessary corrective action, as appropriate. 6. Thereafter, the RO/AMC should readjudicate the claim. If any benefit sought is not granted, the appellant and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ DEREK R. BROWN 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).