Citation Nr: 1329063 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 11-01 012 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increased evaluation for a low back disability, currently evaluated at 20 percent disabling. ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active service in the Army from May 1979 to May 1983. The matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania that, in part, continued a 20 percent evaluation for the Veteran's service-connected low back disability. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. 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 issue on appeal. The Board notes that the August 2009 rating decision also continued a denial of service connection for depression. In February 2009 the Veteran submitted a notice of disagreement in which he specifically limited his disagreement to the issue currently on appeal. However, on the January 2011 VA Form 9 and in a June 2012 statement, the Veteran again raised the issue of service connection for depression. The record does not indicate that the Agency of Original Jurisdiction (AOJ) has readjudicated the claim for entitlement to service connection for depression. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 low back disability is worse than currently rated. The Board finds that further development is necessary in order to properly adjudicate the claim. For disabilities evaluated 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 Unites States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare ups. 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. DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011); 38 C.F.R. § 4.59 (2012). Additionally, in Mitchell, the Court found examination findings 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." Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In this case the Veteran was afforded VA examinations for his low back in September 2008 and June 2009. The September 2008 examiner noted at what point during the range of motion the Veteran experienced limitation due to pain, but failed to address the Veteran's functional impairment. The June 2009 examiner failed to address both functional impairment and the point at which the Veteran experienced limitation due to pain. In addition, the Board notes that both VA examiners failed to provide the Veteran's range of motion in degrees on forward flexion. The September 2008 VA examiner noted that the Veteran's finger-to-floor distance was 20cm. The June 2009 VA examiner noted that the Veteran had 70 degree anteflexion and 20 degree retroflexion. If VA undertakes the effort to provide the Veteran with a medical examination, it must ensure that such exam is an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In light of the deficiencies outlined above, the Board finds the VA examinations to be inadequate and remand necessary to afford the Veteran another VA examination. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names, addresses, and dates of treatment of all outstanding medical care providers, both VA and private, who have treated him for his low back disability since service. Secure any necessary authorizations. If any requested records cannot be obtained, the Veteran and his representative should be notified of such. 2. Schedule the Veteran for an appropriate VA examination to determine the current severity of his low back disability. The claims file, including a copy of this REMAND, must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. Any necessary testing should be accomplished. Testing should include range of motion testing in terms of forward flexion, backward extension, right and left lateral flexion, and right and left rotation. The ranges of motion should be reported in degrees. The examiner should report if there is ankylosis of the thoracolumbar spine and, if so, the angle. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should also specifically report at what point any pain begins, and at what point any pain causes any functional impairment, or whether there is any additional range of motion loss due to excess fatigability, incoordination, or flare-ups. An examiner's report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that the examiner provide a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 3. After the development requested above has been completed to the extent possible, the RO should again review the record. If any benefit sought on appeal, for which a notice of disagreement has been filed, remains denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ WAYNE M. BRAEUER 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).