Citation Nr: 1328623 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-13 642A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an increased rating for lumbar strain with hypertrophic changes, currently evaluated as 20 percent disabling. 2. Entitlement to an increased rating for peripheral neuropathy, right lower extremity, evaluated as 10 percent disabling prior to March 20, 2009, and as 20 percent disabling thereafter. 3. Entitlement to an increased rating for peripheral neuropathy, left lower extremity, evaluated as 10 percent disabling prior to March 20, 2009, and as 20 percent disabling thereafter. 4. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: Michael Miskoweic, Attorney WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active military duty from September 1973 to September 1977 and from July 1981 to July 1996. This matter comes before the Board of Veteran's Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran provided testimony in December 2012 before the undersigned at a Videoconference hearing. A transcript of that hearing is of record. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and 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 RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND During the December 2012 hearing, the Veteran testified that he was totally disabled as a result of his service connected disorders. In a December 2011 statement, the Veteran wrote that his conditions continued to worsen. He noted that he had pending increased ratings claims for his back and secondary conditions. He further noted that he had a claim for TDIU. His last VA examination had been in October 2010. During the October 2010 VA examination, the Veteran reported that his lumbar disorder had progressively worsened. He reported not being able to function secondary to pain. He reported moderate weekly flare-ups lasting 3 to 5 days. Precipitating factors were unknown sometimes cold weather or increased activity. Alleviating factors were heating pads, TENS unit, lying down, or taking hydrocodone. He reported moderate, daily pain across the entire back, shoulders and neck with radiation to the lower extremities with burning and numbness to the feet. He reported no incapacitating episodes in the past 12 months. The Veteran stated that he walked with a cane and was unable to walk further than a few yards. Range of motion (ROM) testing revealed flexion to 20 degrees, extension to 10 degrees, right and left lateral rotation to 5 degrees, right and left lateral flexion to 10 degrees. There was objective evidence of pain throughout the ROM with additional loss of motion following 3 repetitions. Motor examination was normal for muscle tone with no muscle atrophy. Lasegue's sign was found to be negative. Sensory examination revealed lower lumbosacral nerves normal with absent pinprick, pain, and light touch in the feet, toes and lateral lower extremities. The examiner noted that the Veteran had very poor ROM during testing but he was able to fully dress and undress himself to include being able to stand to put on his pants, being able to independently put on his socks and shoes and to put on his button down shirt. Throughout the examination the Veteran appeared to have objective evidence of pain with movement and position, most clearly with supine positioning. He did not demonstrate any level of muscle atrophy in either his upper or lower extremities and his level of strength was well maintained. The examiner opined that while he obviously does have some level of chronic pain, "I do feel he may be able to participate in sedentary employment such as telemarketing or something similar that would allow him the opportunity to shift position." The RO/AMC asked the examiner to clarify her opinion, and in a March 2011 addendum to the October 2010 VA examination, the examiner stated that: The measurements obtained during the testing were valid. However, the measurements obtained on the formal portion of the examination were in great contradiction to what the Veteran was able to do when he was not being measured. In other words, he appeared to be embellishing the extent of his involvement in order to convince the examiner of the extent of his disability. Based on the ROM measurements obtained, it would have been impossible for him to bend over, untie/tie his shoes, put on his socks etc. The actual ROM is likely much greater, but the examiner can only measure what the Veteran is willing to do. The October 2010 VA examiner (a nurse practitioner) concluded that the Veteran may have been "embellishing the extent of his involvement in order to convince the examiner of the extent of his disability." As such, the Board finds that the examination was inadequate for rating purposes. The Court has held that for disabilities rated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45 (2012), pertaining to functional impairment. The Court has instructed that in applying these regulations VA shall obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner shall also determine the point, if any, at which such factors cause functional impairment. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2012). In Mitchell, the Court found an examination to be inadequate where the examiner did not explicitly report "whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain." In the instant case, during the Veteran's October 2010 VA examination, it was indicated that he may have been exhibiting poor effort, as indicated by the examiner, who in the March 2011 addendum concluded that the Veteran may have been "embellishing the extent of his involvement in order to convince the examiner of the extent of his disability." As the findings in this report appear to be insufficient so as to assess the precise severity of the Veteran's disability, an additional VA examination of the Veteran is warranted. When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991); Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Given that it has been almost three years since the most recent VA examination of the low back and lower extremities, and in light of the above, the Board finds another VA examination is necessary. As to the issue of entitlement to a TDIU, the claims being remanded herein are inextricably intertwined with the Veteran's claim for a TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The other issues must be addressed by the RO before the Board renders a decision on the TDIU claim. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall schedule the Veteran for a VA orthopedic and neurologic examination to determine the nature and severity of his service-connected lumbar strain, and peripheral neuropathy, right and left lower extremities and to determine if his service-connected disabilities, acting either alone or in concert, render him unable to secure and follow a substantially gainful occupation. The claims file including the additional records obtained subsequent to this Board remand including the Vass Vocational Services, Inc., evaluation dated in November 2012 must be made available to the examiner. The examiner must interview the Veteran as to all symptoms and limitations resulting from service connected disabilities of the lumbar spine and right and left lower extremities. All tests deemed necessary shall be conducted, including X-rays, and the results reported in detail. In the examination report, the examiner must delineate all symptoms or pathology attributable to the service-connected lumbar strain and peripheral neuropathy, right and left lower extremities. The examiner should assess the severity of each symptom and specifically note whether and to what extent there is functional loss consisting of the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. The examiner must also identify any associated neurological deformities associated with the service-connected lumbar spine disorder and bilateral lower extremities, to include any radiculopathy or neuropathy of the extremities, and any associated bladder or bowel impairment. The severity of each neurological sign and symptom must be reported, if such exists, as mild, moderate, moderately severe, or severe in nature, and whether such represents symptomatology that more closely approximates incomplete or complete paralysis of the affected nerves. For each disability, the examiner must state whether it results in loss of motion due to pain, excess fatigability, weakened movement, or incoordination, and if there is such loss of motion, the examiner must state at what point, in degrees of extension and/or flexion, the loss of motion occurs. The examiner must provide a complete rationale for all opinions rendered. The examiner must provide an expert opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that any condition for which service connection has been established (which at this time includes the lumbar strain with hypherthrophic changes; peripheral neuropathy, right and left lower extremities; and residuals of an appendectomy) renders him unable to secure and follow a substantially gainful occupation. The examiner must address this question with regard to each disability acting alone and as to the effect of all of the service-connected disabilities acting together. 2. After ensuring that the examination report is adequate and in compliance with the directive above, readjudicate the issues of entitlement to an increased rating for lumbar strain with hypertrophic changes evaluated as 20 percent disabling; an increased rating for peripheral neuropathy, right and left lower extremities, each evaluated as 10 percent disabling prior to March 20, 2009, and as 20 percent disabling thereafter; and, of entitlement to TDIU. 3. If any benefit sought is not granted in full, provide the Veteran and his representative with a supplemental statement of the case and allow for an appropriate opportunity to respond prior to returning the matter to the Board. 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). This case 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). ____________________________________________ Thomas H. O'Shay Acting 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).