Citation Nr: 1328312 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 10-37 084 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to a rating in excess of 40 percent for lumbosacral strain. 2. Entitlement to a total disability evaluation based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K.S. Hughes, Counsel INTRODUCTION The Veteran had active duty service from April 1980 to April 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in April 2010, a statement of the case was issued in August 2010, and a substantive appeal was received in September 2010. A videoconference hearing was held before the undersigned in June 2011. A transcript is of record. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. At present there are no additional documents pertinent to this appeal in Virtual VA. 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 At the June 2011 videoconference hearing, the Veteran testified that his service-connected lumbar spine disability results in sciatic nerve pain radiating down into the legs. The Veteran's representative read from a February 2004 statement from a VA physician which notes that the Veteran's chronic low back pain is frequently associated with left sciatic radiation pain. The physician also noted that a September 2003 magnetic resonance imaging (MRI) of the lumbosacral spine showed mild central spinal and bilateral neuroforaminal stenosis at L4-5 secondary to diffuse intervertebral disc bulging, and moderate left lateral recess and neuroforaminal stenosis at L5-S1 secondary to left paramedian intervertebral disc protrusion. Governing regulations now in effect provide for separate evaluations under an appropriate diagnostic code for any associated objective neurologic disabilities, including, but not limited to, bowel or bladder impairment, when rating diseases and injuries of the spine. 38 C.F.R. § 4.71a, General Rating Formula, Note 1. The December 2009 VA spine examination shows that, since the initial 1980 lower back injury in service, the Veteran sustained lower back injuries in post-service motor vehicle accidents in September 2007 and March 2008 and reported increased lower back pain since these accidents. A favorable resolution of the increased rating claim may impact on the claim for a TDIU rating; therefore, adjudication of the claim for TDIU must be deferred pending resolution of the increased rating claim. Harris v Derwinski, 1 Vet. App. 80 (1991). Finally, the Board notes that the most recent VA treatment records in the claims file are dated in June 2010. In view of the need to remand the case for VA examination, it is appropriate to ensure that all pertinent VA records are associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. The RO should take all indicated action in order to obtain copies of any VA clinical records not on file pertaining to treatment for low back complaints dated from June 2010 to the present. All requests for records and their responses must be associated with the claims folder. 2. After completion of the above, schedule the Veteran for a VA spine examination to evaluate the severity of the service-connected lumbosacral strain. The claims folder should be made available to the examiner for review. All necessary tests and studies (including sensory, reflex, and motor testing, to include EMG or nerve conduction velocity studies if indicated) should be accomplished. All clinical findings in regard to evaluating he Veteran's low back disability in accordance with applicable rating criteria, should be set forth in the report. The examiner should clearly report lumbar spine range of motion in degrees of flexion, and any additional functional loss (expressed in terms of additional degrees of limited motion) due to pain, painful movement, weakened movement, fatigue, or repetitive movement of the lumbar segments of the spine; if possible, the examiner should estimate any additional limitations to be expected during flare-ups. The examiner should report the frequency and length of any incapacitating episodes over the previous 12 months. The examiner should also report any associated objective neurologic abnormalities, to include bowel or bladder impairment or whether the disability is manifested by radiculopathy (with any such finding to be characterized as incomplete and mild, moderate, or severe or complete). The examiner must, to the extent possible, distinguish any pathology/symptoms due to intercurrent injury (motor vehicle accidents in September 2007 and March 2003) from those attributed to the service-connected disability. The examiner should also offer an opinion on the effect of the service-connected low back disability on the Veteran's ability to engage in substantially gainful employment. 3. The RO should ensure that all of the development sought is completed, arrange for any further development suggested by additional evidence received, and then re- adjudicate the claims. The RO should specifically determine whether a separate rating or ratings is/are warranted for any radiculopathy associated with the low back disability. If either claim remains denied, the RO should issue an appropriate SSOC and afford the Veteran the opportunity to respond. The case should then be returned to the Board. 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 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). _________________________________________________ ALAN S. PEEVY 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).