Citation Nr: 1329218	
Decision Date: 09/12/13    Archive Date: 09/20/13

DOCKET NO.  10-44 027A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, 
South Carolina


THE ISSUES

1.  Entitlement to an initial rating for degenerative disc 
disease of the lumbar spine higher than 10 percent, 
effective July 14, 1999, and 20 percent, effective October 
9, 2008.

2.  Entitlement to an initial rating for peripheral 
neuropathy of the right lower extremity higher than 20 
percent.

3.  Entitlement to an initial rating for peripheral 
neuropathy of the left lower extremity higher than 20 
percent.

4.  Entitlement to an effective date earlier than September 
29, 2008 for service connection for peripheral neuropathy of 
the left lower extremity.

5.  Entitlement to an effective date earlier than October 9, 
2008 for service connection for peripheral neuropathy of the 
right lower extremity.

6.  Entitlement to service connection for a central nervous 
system disorder, secondary to degenerative disc disease of 
the lumbar spine.

7.  Entitlement to service connection for irritable bowel 
syndrome, secondary to degenerative disc disease of the 
lumbar spine.

8.  Entitlement to service connection for loss of bladder 
control, secondary to degenerative disc disease of the 
lumbar spine.

9.  Entitlement to service connection for erectile 
dysfunction, secondary to degenerative disc disease of the 
lumbar spine.

10.  Entitlement to service connection for hypertension, 
secondary to degenerative disc disease of the lumbar spine.

11.  Entitlement to service connection for hearing loss.

12.  Entitlement to a total disability rating based on 
individual unemployability due to service-connected 
disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Sean A. Ravin, Attorney


ATTORNEY FOR THE BOARD

Sarah Richmond, Counsel




INTRODUCTION

The Veteran had active military service from January 1956 to 
September 1959.

This matter comes to the Board of Veterans' Appeals (Board) 
from rating decisions of the Department of Veterans Affairs 
(VA) Regional Office (RO) in Columbia, South Carolina.  In 
February 2009, the RO effectuated a previous September 2008 
Board decision and granted service connection for 
degenerative disc disease of the lumbar spine assigning a 10 
percent rating, effective July 14, 1999, and a 20 percent 
rating, effective October 9, 2008.  The RO also granted 
service connection for peripheral neuropathy of the 
bilateral lower extremities, secondary to the degenerative 
disc disease of the lumbar spine, assigning each 20 percent 
ratings, effective October 9, 2008.  In March 2009, the RO 
granted an earlier effective date of September 29, 2008 for 
only the peripheral neuropathy of the left lower extremity, 
as it determined that the Veteran had submitted a separate 
claim for this disability as of that date.  The RO also 
denied service connection for central nervous system damage, 
irritable bowel syndrome, bladder control problems, erectile 
dysfunction, hypertension, and hearing loss.  Finally, the 
RO denied entitlement to a TDIU in July 2010. 

With respect to the earlier effective date peripheral 
neuropathy claims, the RO has only developed the earlier 
effective date claim for the left peripheral neuropathy.  
However, the Veteran's representative filed a notice of 
disagreement in April 2009 that encompassed all claims that 
had been denied, which would have included the claim for an 
effective date earlier than October 9, 2008 for the 
peripheral neuropathy of the right lower extremity.  Even 
though the Veteran did not receive a separate statement of 
the case for the earlier effective date claim for the right 
lower extremity peripheral neuropathy, the Board considers 
the initial rating for the lumbar spine disability to 
encompass the claims for separate ratings for peripheral 
neuropathy of the bilateral lower extremities, secondary to 
the lumbar spine disability.  The diagnostic criteria for 
the spine specifically allow for separate neurological 
ratings for disabilities associated with the spine.  See 
38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (1).  
Therefore, the Board has jurisdiction over the issues of 
entitlement to separate ratings for the peripheral 
neuropathy of the lower extremities, secondary to the lumbar 
spine disability (to include the effective date of the 
assigned ratings), regardless of whether the Veteran has 
filed separate claims and appealed these disabilities.  For 
this reason the issues are correct as noted on the front 
page of this decision. 

The issues of entitlement to higher initial ratings for 
degenerative disc disease of the lumbar spine and peripheral 
neuropathy of the bilateral lower extremities, service 
connection for central nervous system damage, irritable 
bowel syndrome, loss of bladder control, erectile 
dysfunction, hypertension, and hearing loss, and entitlement 
to a TDIU are addressed in the REMAND portion of the 
decision below and are REMANDED to the Regional Office.


FINDINGS OF FACT

1.  The Veteran's claim for entitlement to service 
connection for a lumbar spine disability was received by the 
RO on July 14, 1999. 

2.  The March 2009, grant of service connection for 
peripheral neuropathy of the bilateral lower extremities, 
secondary to the lumbar spine disability can be construed as 
the assignment of separate ratings for peripheral neuropathy 
of the bilateral lower extremities associated with the 
lumbar spine disability.  

3.  The peripheral neuropathy ratings are considered as part 
of the original service connection claim for the lumbar 
spine disability; thus the effective date of the peripheral 
neuropathy ratings should be the same as the date of the 
claim for the lumbar spine disability, July 14, 1999. 


CONCLUSION OF LAW

The criteria for an effective date of July 14, 1999 for the 
grant of service connection for peripheral neuropathy of the 
bilateral lower extremities have been met.  38 U.S.C.A. §§ 
5107, 5110 (West. 2002 & Supp. 2012); 38 C.F.R. §§ 3.400, 
4.71a, Diagnostic Code 5242, Note (1), 4.124a, Diagnostic 
Code 8521 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 
5292, 5295 (effective prior to September 26, 2003). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The RO granted service connection for peripheral neuropathy 
of the bilateral lower extremities secondary to the lumbar 
spine disability in a February 2009 rating decision, which 
is the same rating decision in which the RO effectuated the 
previous Board decision and granted service connection for 
degenerative disc disease of the lumbar spine.  The original 
effective date assigned for the peripheral neuropathy 
disabilities was October 9, 2008, based on the date of a VA 
examination, which demonstrated peripheral neuropathy.  In a 
later March 2009 rating decision, the RO granted an earlier 
effective date of September 29, 2008 for the peripheral 
neuropathy of the left lower extremity after it determined 
that the Veteran had filed a separate claim for this 
disability (claimed as left sciatica) as of that date.
 
The Veteran seeks entitlement to earlier effective dates for 
the peripheral neuropathy of the bilateral lower 
extremities.

Generally, the effective date of an award of service 
connection is the date the claim was received or the date 
entitlement arose, whichever is later.  38 U.S.C.A. § 
5110(a) (West 2002); 38 C.F.R. § 3.400 (2012).  The same is 
true for an award based on a claim reopened after final 
adjudication, as VA laws and regulations stipulate that the 
effective date of such an award shall be fixed in accordance 
with the facts found, but shall not be earlier than the date 
the claim was received, or the date entitlement arose, 
whichever is later.  See id.; 38 C.F.R. §3.400(r). 

The VA administrative claims process recognizes formal and 
informal claims.  A formal claim is one that has been filed 
in the form prescribed by VA.  See 38 U.S.C.A. § 5101(a) 
(West 2002); 38 C.F.R. § 3.151(a).  An informal claim may be 
any communication or action, indicating an intent to apply 
for one or more benefits under VA law.  See Thomas v. 
Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 
3.1(p), 3.155(a).  An informal claim must be written, see 
Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it 
must identify the benefit being sought.  Brannon v. West, 12 
Vet. App. 32, 34-5 (1998). 

In some cases, a report of examination or hospitalization 
may be accepted as an informal claim for benefits.  38 
C.F.R. § 3.157(b).  The date of a VA medical record will be 
accepted as the date of receipt of a claim when such record 
relates to examination or treatment of a disability for 
which service-connection has previously been established or 
when a claim specifying the benefit sought is received 
within one year from the date of such record. 38 C.F.R. § 
3.157(b). 

The Veteran originally filed a service connection claim for 
a lumbar spine disability on July 14, 1999.  Eventually this 
claim was granted, and in February 2009 the RO assigned an 
effective date of July 14, 1999 for the lumbar spine 
disability.  The regulations for rating disabilities of the 
spine were twice revised during the pendency of the 
Veteran's appeal, effective September 23, 2002, and 
effective September 26, 2003. 67 Fed. Reg. 54345 (Aug. 22, 
2002); 68 Fed. Reg. 51454 (Aug. 27, 2003).  Where the law or 
regulations governing a claim are changed while the claim is 
pending, the version most favorable to the claimant applies 
from the effective date of the change, while the previous 
version of the regulation applies prior to the date of 
change.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 
2003); VAOPGCPREC 7-2003 (Nov. 19, 2003), 69 Fed. Reg. 25179 
(2004).  The amended rating criteria can be applied only for 
periods from and after the effective date of the regulatory 
change.  The Board can apply only the prior regulation to 
rate the Veteran's disability for periods preceding the 
effective date of the regulatory change. VAOPGCPREC 3-00 
(Apr. 10, 2000), 65 Fed. Reg. 33422 (2000). 

The diagnostic code used to rate the lumbar spine disability 
is 38 C.F.R. § 4.71a, Diagnostic Code 5242, for degenerative 
arthritis, which is effective September 26, 2003.  Note (1) 
of this diagnostic code provides that any associated 
objective neurological abnormalities should be rated 
separately under the appropriate diagnostic code.  This is 
important because it means that any associated neurologic 
abnormalities would be considered as a separate rating that 
was secondary to the lumbar spine disability, and would 
therefore be considered as part of the same claim for the 
lumbar spine disability.  However, Diagnostic Code 5242 
cannot be applied to the Veteran's claim prior to the 
effective date of the revised regulation, September 26, 
2003.

Prior to September 26, 2003, there is no specific provision 
that provides for a separate rating for neurological 
impairment associated with a spine disability.  However, the 
U.S. Court of Appeals for Veterans Claims has found that 
separate neurological ratings for impairment associated with 
a spine disability are not specifically prohibited by the 
regulations that were in effect at the time the Veteran's 
spine disability was awarded compensation in 1999.  Bierman 
v. Brown, 6 Vet. App. 125 (1994).  The Court in Bierman 
noted that the rating schedule had specific instances 
wherein separate ratings for closely related functions were 
expressly prohibited; i.e., 38 C.F.R. §§ 4.55(g) (1993) 
("Muscle injury ratings will not be combined with peripheral 
nerve paralysis ratings for the same part, unless affecting 
entirely different functions."); 4.113 (noting that certain 
diseases of the digestive system "do not lend themselves to 
distinct and separate disability evaluations without 
violating the fundamental principle relating to pyramiding 
as outlined in § 4.14."); 4.115 ("Separate ratings are not 
to be assigned for disability from disease of the heart and 
any form of nephritis, on account of the close 
interrelationship of cardiovascular disabilities."); 4.96 
(ratings of various specified respiratory conditions will 
not be combined).   Id. at 130.  The Court found that the 
Board had not provided adequate reasons and bases as to why 
the Veteran could not receive a rating for his foot drop 
separate from the 60 percent rating under Diagnostic Code 
5293 (for intervertebral disc syndrome).  Id. at 131-32.  
Therefore, as long as the provisions of 38 C.F.R. § 4.14 are 
not violated and the Veteran is not being compensated twice 
for the same impairment, separate neurological ratings for 
impairment associated with a lumbar spine disability are not 
prohibited prior to the change in regulations for the spine, 
effective September 26, 2003.

In March 2009, the RO established service connection for 
peripheral neuropathy of the bilateral lower extremities as 
secondary to the lumbar spine disability, and assigned an 
effective date of October 9, 2008.  However, in effect, the 
RO granted separate ratings for peripheral neuropathy of the 
bilateral lower extremities, secondary to the lumbar spine 
disability as part of effectuating the Board's grant of 
service connection for a low back disability and in 
assigning an initial rating.  As the peripheral neuropathy 
ratings are considered as part of the original service 
connection claim for the lumbar spine disability, the 
effective date of the peripheral neuropathy ratings should 
be the same as the date of the claim for the lumbar spine 
disability, July 14, 1999.  The Board notes that the medical 
evidence as early as 1966 demonstrates radiating pain from 
the back into the lower extremities, and sciatica.  See, 
e.g., private medical records dated in July 1966, April 
1969, August 1969, and August 1970.  Further, the more 
recent medical evidence of record dated as early as 2001 
continues to show such symptomatology.  In this regard, an 
August 2001 VA examination report also demonstrates that the 
Veteran had radiating pain into the lower extremities as a 
result of his lumbar spine disability.  In addition a 
November 2002 VA treatment record notes the Veteran's 
complaints of back pain and sciatica to the lower 
extremities for the past 30 years.  

Based on a careful review of the record, the Board finds 
that the evidence supports the assignment of an effective 
date of July 14, 1999 for the grant of service connection 
for peripheral neuropathy of the bilateral lower 
extremities.  Under the law, the effective date for a grant 
of service connection is the date of receipt of the 
application to reopen, or the date entitlement arose, 
whichever is later.  38 U.S.C.A. § 5110; 38 C.F.R. § 
3.400(q)(1)(ii).  In this case the Veteran filed his 
original service connection claim for a lumbar spine 
disability on July 14, 1999.  Resolving all doubt in the 
Veteran's favor, entitlement to a separate rating for 
peripheral neuropathy of the bilateral lower extremities as 
due to the lumbar spine disability arose as of that date, 
given that the findings of radiculopathy on VA medical 
records in August 2001 and November 2002 and even earlier.  
Accordingly, the claim for entitlement to an earlier 
effective date for the grant of service connection for 
peripheral neuropathy of the bilateral lower extremities is 
granted, and the proper effective date for the assignment of 
service connection for peripheral neuropathy of the 
bilateral lower extremities is July 14, 1999. 

The Veterans Claims Assistance Act of 2000 (VCAA) enhanced 
VA's duty to notify and assist claimants in substantiating 
their claims for VA benefits, as codified in pertinent part 
at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 
C.F.R. §§ 3.159, 3.326(a) (2010).  In view of the 
disposition herein, additional discussion of those 
procedures is unnecessary as any defect in the notice or 
assistance provided to the Veteran constituted harmless 
error.


ORDER

Entitlement to an earlier effective date of July 14, 1999 
for service connection for peripheral neuropathy of the left 
lower extremity is granted, subject to the laws and 
regulations governing the payment of monetary benefits.

Entitlement to an earlier effective date of July 14, 1999 
for service connection for peripheral neuropathy of the 
right lower extremity is granted, subject to the laws and 
regulations governing the payment of monetary benefits.


REMAND

The Veteran seeks initial ratings higher than 10 percent, 
effective July 14, 1999, and 20 percent, effective October 
9, 2008 for his degenerative disc disease of the lumbar 
spine.  The Veteran was last evaluated for purposes of 
determining the present severity of his back in July 2010.  
He also was examined in May 2011 for his back for purposes 
of determining his employability status.  However, his 
representative asserted in a January 2013 statement that the 
Veteran's lumbar spine disability had worsened since it was 
last evaluated in July 2010 and that this examination was 
too remote for rating purposes.  The Veteran's 
representative also asserted that the July 2010 examination 
report was inadequate because the examiner did not have 
access to the claims file.
 
The fulfillment of the duty to assist includes the conduct 
of a thorough and contemporaneous medical examination.  
Green v. Derwinski, 1 Vet. App. 121, 124 (1991).  However, 
the mere passage of time between the last examination and 
the Board's review does not automatically render the 
examination inadequate; there must be evidence of a change 
in the condition or allegation of worsening of the 
condition.  Palczewski v. Nicholson, 21 Vet. App. 174, 182 
(2007).

As the Veteran's representative has asserted that the 
severity of his service-connected lumbar spine disability 
has worsened since it was last evaluated for rating purposes 
approximately three years ago, another examination is 
warranted to determine the present severity of the 
disability.  Also, given that the Veteran's peripheral 
neuropathy ratings have been assigned as secondary to the 
lumbar spine disability, a separate neurological examination 
should be conducted to determine the present severity of the 
neurological ratings, effective July 14, 1999 to present.  
See Chotta v. Peake, 22 Vet. App. 80 (2008) (noting that a 
duty to assist may include development of medical evidence 
through a retrospective medical evaluation where there is a 
lack of medical evidence for the time period being rated); 
see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding 
that the duty to assist may include development of medical 
evidence through a retrospective medical evaluation where 
there is a lack of medical evidence for the time period 
being rated).

As noted above, the regulations for rating disabilities of 
the spine were twice revised during the pendency of the 
Veteran's appeal, effective September 23, 2002, and 
effective September 26, 2003. 67 Fed. Reg. 54345  (Aug. 22, 
2002); 68 Fed. Reg. 51454  (Aug. 27, 2003).  Where the law 
or regulations governing a claim are changed while the claim 
is pending, the version most favorable to the claimant 
applies from the effective date of the change. See Kuzma v. 
Principi, 341 F.3d 1327   (Fed. Cir. 2003); VAOPGCPREC 7-
2003 (Nov. 19, 2003), 69 Fed. Reg. 25179  (2004).  The 
amended rating criteria can be applied only for periods from 
and after the effective date of the regulatory change.  The 
Board can apply the prior regulation to rate the Veteran's 
disability for periods preceding the effective date of the 
regulatory change and thereafter, if more favorable to the 
claimant than the revised regulation.  VAOPGCPREC 3-00 (Apr. 
10, 2000), 65 Fed. Reg. 33422  (2000). 

Although the RO has evaluated the Veteran under 38 C.F.R. 
§ 4.71a, Diagnostic Code 5242 for degenerative arthritis, 
this revised regulation is only effective as of September 
26, 2003.  Therefore, prior to this date the previous 
regulations for the spine would apply.  The RO must consider 
and notify the Veteran of both the old and the new versions 
of the relevant criteria. 

In addition, the Veteran asserts that he has a central 
nervous system disorder, irritable bowel syndrome, loss of 
bladder control, erectile dysfunction, and hypertension, all 
secondary to his lumbar spine disability.  

Medical evidence of record either suggests symptoms that 
could be associated with these disabilities, or confirms 
their diagnosis.  For instance, regarding central nervous 
system damage, the Veteran complained of a period of 
"blacking out" for about four hours in July 2004.  An August 
2004 electroencephalogram (EEG) report was abnormal because 
of slow unreactive background; there was prolonged 
convulsing during the study without associated epileptiform 
activity.  An October 2004 computed tomography (CT) scan of 
the brain also showed subtle decreased attenuation in the 
subcortical white matter of the bilateral frontal and 
parietal lobes likely ischemic demyelination due to small 
vessel disease.  It is not clear what these findings 
demonstrate, but given the Veteran's assertions of having 
central nervous system damage as a result of his lumbar 
spine disability, an examination and medical opinion should 
be provided to resolve this claim.

With respect to the irritable bowel syndrome claim, the 
Veteran complained of long-standing constipation in January 
2004.  He also had a history of gastrectomy due to ulcers.  
Given these findings an examination and medical opinion 
should be provided to resolve whether the Veteran currently 
has irritable bowel syndrome secondary to his lumbar spine 
disability, including medications he takes for the pain 
associated with his back.

Regarding loss of bowel control and erectile dysfunction, an 
August 1995 private treatment record shows the Veteran 
complained of severe left testicle pain and difficulty 
voiding.  A September 1996 VA treatment record also notes 
some difficulty with bladder control.  A February 2003 VA 
neurological note shows complaints of problems with bladder 
function.  In May 2003, a VA treatment record also notes 
some problems with bladder function.  A November 2008 
private treatment record shows complaints of pain in the 
back radiating to the left testicle.  The Veteran also 
complained of decreased sex drive on private treatment 
records dated in January and August 2009.  Based on these 
findings, a medical examination and opinion is warranted to 
determine whether the Veteran has any loss of bowel control 
or erectile dysfunction as a result of his degenerative disc 
disease of the lumbar spine.

With respect to hypertension, the medical evidence confirms 
the Veteran has been diagnosed with hypertension.  Thus, a 
medical opinion should be provided to determine whether the 
Veteran's hypertension has been caused or aggravated by his 
service-connected lumbar spine disability, to include the 
medication used to treat the arthritic pain.

Regarding bilateral hearing loss, a VA audiological 
examination was provided in November 2008, which shows the 
Veteran stated that in service from January 1956 to 
September 1959 he was an engineer in the Navy working in the 
engine room with no ear protection.  The report also 
confirms that he presently has a diagnosis of bilateral 
hearing loss.   However, no opinion was provided to 
determine whether there was a relationship between the 
Veteran's noise exposure in service and his current hearing 
loss disability.  Based on these findings an opinion is 
warranted to determine whether it is at least as likely as 
not that the Veteran's bilateral hearing loss is related to 
his exposure to noise in service.

Finally, the Veteran asserts that he is unemployable as a 
result of his service-connected disabilities.  The record 
shows the Veteran is in receipt of Social Security 
Administration (SSA) disability benefits for arthritis of 
multiple parts of the body and for degenerative disc 
disease.  He is also blind in his left eye.  He has been 
considered unable to work since February 1996.  The SSA 
decision notes that the Veteran has a ninth grade education 
and past relevant work experience as a machine operator in a 
fiberglass plant and cleanup man.  A private doctor, Dr. 
James, determined in opinions in 1996 that the Veteran could 
not work other than sedentary positions because of his 
general arthritis (including the back).  Another private 
doctor, Dr. Visk, determined in May 2006 that the Veteran's 
back and neck problems were severe and inhibited working.

In May 2011, the Veteran underwent a VA examination for 
purposes of determining whether he was unemployable as a 
result of his service-connected disabilities.  The examiner 
determined that ultimately it was a difficult question.  It 
was noted that the Veteran voluntarily left the workforce in 
1996.  He was 72 years-old.  He had some back strain and 
other issues during his military career and medical evidence 
had demonstrated in 1999 that the Veteran's back pain had 
been chronic in nature.  The examiner noted that reasons for 
retirement included depression, nerves, time to retire, and 
some back issues.  It was found that the Veteran's back pain 
and right-sided radiculopathy would not affect him 
obtaining, maintaining, or securing employment of a 
sedentary nature, but that his back pain and right-sided 
radiculopathy would impair him on a physical job.  He would 
not be able to do physical employment secondary to his back 
pain and radiculopathy.

Given that the Veteran only has ninth grade education and 
work experience only in physical jobs, it is not clear if 
the Veteran is unemployable as a result of his lumbar spine 
and peripheral neuropathy disabilities, without regard to 
advancing age or other nonservice-connected disabilities.  
Also, given the fact that the issues of entitlement to 
initial higher ratings for the lumbar spine and peripheral 
neuropathy disabilities are being remanded, the issue of 
whether the Veteran meets the schedular criteria for a TDIU 
is inextricably intertwined with the initial rating matters.  
For these reasons, a supplemental opinion should be provided 
to determine whether the Veteran is considered unemployable 
as a result of his service-connected disabilities. 

Also while on remand, the Veteran should be given an 
opportunity to identify any additional outstanding treatment 
records pertaining to his claimed disabilities. Thereafter, 
all identified records should be obtained for consideration 
in the Veteran's appeal.

Accordingly, the case is REMANDED for the following action:

1.  Ask the Veteran to identify any 
additional treatment he has received for 
his claimed disabilities.  If the 
Veteran responds make reasonable efforts 
to obtain these records and notify the 
Veteran of any responses received and 
what further steps VA will make 
regarding the claim.

2.  After obtaining all outstanding 
records, the Veteran should be afforded 
an appropriate VA spine examination to 
determine the current nature and 
severity of his low back disability.  
The claims file, to include a copy of 
this Remand, must be made available to 
and be reviewed by the examiner.  Any 
indicated evaluations, studies, and 
tests should be conducted.  
 
The examiner should identify and 
describe in detail all residuals 
attributable to the Veteran's service-
connected degenerative disc disease of 
the lumbar spine. 
 
A.  The examiner should conduct range of 
motion testing of the lumbar spine, 
specifically noting whether - upon 
repetitive motion of the Veteran's low 
back - there is any pain, weakened 
movement, excess fatigability, or 
incoordination on movement, and whether 
there is likely to be additional range 
of motion loss due to: (1) pain on use, 
including during flare-ups; (2) weakened 
movement; (3) excess fatigability; or 
(4) incoordination.  The examiner should 
also describe whether pain significantly 
limits functional ability during flare-
ups or when the lumbar spine is used 
repeatedly.  If there is no pain, no 
limitation of motion and/or no 
limitation of function, such facts must 
be noted in the report. 

B.  State whether there is any ankylosis 
of the lumbar spine, and if so, whether 
it is favorable or unfavorable.

C.  The examiner should state whether 
the Veteran's degenerative disc disease 
causes lumbosacral strain, and if so 
whether this results in muscle spasm on 
extreme forward bending, loss of lateral 
spine motion, unilateral, in standing 
position; OR listing of the whole spine 
to opposite side, positive Goldthwaite's 
sign, marked limitation of forward 
bending in standing position, loss of 
lateral motion with osteo-arthritic 
changes, or narrowing or irregularity of 
joint space, or some of the above with 
abnormal mobility on forced motion.

D.  Further, the examiner should 
identify any neurological pathology 
related to the service-connected low 
back disorder, and fully describe the 
extent and severity of those symptoms, 
including a statement of which nerves 
are involved.  In making this 
assessment, the examiner should 
specifically state whether it is at 
least as likely as not (50 percent 
probability or greater) that the Veteran 
has erectile dysfunction and/or loss of 
bladder control as a result of his 
service-connected lumbar spine 
disability.    
 
E.  Also, the examiner should state 
whether the Veteran's service-connected 
degenerative disc disease of the lumbar 
spine causes intervertebral disc 
syndrome, and if so, the examiner should 
document the number of weeks, if any, 
during the past 12 months, that the 
Veteran has had 'incapacitating 
episodes,' defined as a period of acute 
signs and symptoms due to intervertebral 
disc syndrome that requires bed rest 
prescribed by a physician and treatment 
by a physician.

In addition if the Veteran's service-
connected degenerative disc disease of 
the lumbar spine causes intervertebral 
disc syndrome, the examiner should state 
whether the intervertebral disc syndrome 
is considered moderate with recurring 
attacks, or severe, with recurring 
attacks with intermittent relief, or 
pronounced with persistent symptoms 
compatible with sciatic neuropathy 
(i.e., with characteristic pain and 
demonstrable muscle spasm and an absent 
ankle jerk or other neurological 
findings appropriate to the site of the 
diseased disc), little intermittent 
relief.

F.  The examiner should also discuss the 
impact the Veteran's back disability has 
on his ability to seek and maintain 
gainful employment, and indicate whether 
such disorder alone or in combination 
with the other service-connected 
disabilities renders him unemployable.  
In making this determination, 
consideration may be given to the 
Veteran's level of education, special 
training, and previous work experience, 
but factors such as age or impairment 
caused by nonservice-connected 
disabilities are not to be considered. 
 
The examiner must provide a 
comprehensive report including complete 
rationale for all opinions and 
conclusions reached, citing the 
objective medical findings leading to 
the conclusions.

3.  Schedule the Veteran for a VA 
neurology examination.  The claims file, 
to include a copy of this Remand, must 
be made available to and be reviewed by 
the examiner.  Any indicated 
evaluations, studies, and tests should 
be conducted.  

A.  The examiner should identify all 
residuals attributable to the Veteran's 
peripheral neuropathy of the lower 
extremities since July 1999.  The 
examiner should specifically discuss the 
extent, if any, of paralysis of the 
nerves involved.  Specifically, the 
degree of paralysis or incomplete 
paralysis caused by the peripheral 
neuropathy secondary to the degenerative 
disc disease of the lumbar spine should 
be assessed.  

The examiner should also discuss the 
impact the Veteran's peripheral 
neuropathy of the lower extremities has 
on his ability to seek and maintain 
gainful employment, and indicate whether 
such either alone or in combination with 
the Veteran's remaining service-
connected disabilities renders him 
unemployable.  In making this 
determination, consideration may be 
given to the Veteran's level of 
education, special training, and 
previous work experience, but factors 
such as age or impairment caused by 
nonservice-connected disabilities are 
not to be considered. 

B.  With regard to the claim for service 
connection for a central nervous system 
disorder, the examiner should address 
the following:

(i)  Whether it is at least as 
likely as not (50 percent or 
greater probability) that any 
current central nervous system 
disorder was caused by his 
degenerative disc disease of the 
lumbar spine, to include the pain 
medication taken for this 
disability. 

(ii)  Whether it is at least as 
likely as not (50 percent or 
greater probability) that any 
current central nervous system 
disorder was aggravated (meaning 
chronically worsened) by his 
degenerative disc disease of the 
lumbar spine, to include the pain 
medication taken for this 
disability.   If so, please state, 
to the extent possible, the 
baseline level of severity of the 
central nervous system disorder 
before the onset of aggravation.

In providing these opinions, the 
examiner should consider the 
Veteran's complaints of "blacking 
out" for about four hours in July 
2004; an August 2004 VA EEG report 
that was abnormal because of slow 
unreactive background; and 
prolonged convulsing during the 
study without associated 
epileptiform activity; and an 
October 2004 CT scan of the brain 
showing subtle decreased 
attenuation in the subcortical 
white matter of the bilateral 
frontal and parietal lobes likely 
ischemic demyelination due to small 
vessel disease. 
  
The examiner must provide a 
comprehensive report including complete 
rationales for all opinions and 
conclusions reached, citing the 
objective medical findings leading to 
the conclusions.  

5.  Schedule the appropriate VA 
hypertension examination to determine 
whether the nature and etiology of the 
Veteran's hypertension.  The claims 
file, to include a copy of this Remand, 
must be made available to and be 
reviewed by the examiner.  Any indicated 
evaluations, studies, and tests should 
be conducted.  
		
After a thorough examination the 
examiner should address the following:

A.  Whether it is at least as likely as 
not (50 percent or greater probability) 
that the Veteran's hypertension was 
caused by his degenerative disc disease 
of the lumbar spine, to include the pain 
medication taken for this disability. 

B.  Whether it is at least as likely as 
not (50 percent or greater probability) 
that the Veteran's hypertension was 
aggravated (meaning chronically 
worsened) by his degenerative disc 
disease of the lumbar spine, to include 
the pain medication taken for this 
disability.  If so, please state, to the 
extent possible, the baseline level of 
severity of the hypertension before the 
onset of aggravation.   
  
The examiner must provide a 
comprehensive report including complete 
rationales for all opinions and 
conclusions reached, citing the 
objective medical findings leading to 
the conclusions.  

6.  Schedule the appropriate VA 
gastrointestinal examination to 
determine whether the nature and 
etiology of the Veteran's claimed 
irritable bowel syndrome.  The claims 
file, to include a copy of this Remand, 
must be made available to and be 
reviewed by the examiner.  Any indicated 
evaluations, studies, and tests should 
be conducted.  
		
After a thorough examination the 
examiner should address the following:

A.  Whether it is at least as likely as 
not (50 percent or greater probability) 
that any current irritable bowel 
syndrome was caused by his degenerative 
disc disease of the lumbar spine, to 
include the pain medication taken for 
this disability. 

B.  Whether it is at least as likely as 
not (50 percent or greater probability) 
that any current irritable bowel 
syndrome was aggravated (meaning 
chronically worsened) by his 
degenerative disc disease of the lumbar 
spine, to include the pain medication 
taken for this disability.  If so, 
please state, to the extent possible, 
the baseline level of severity of the 
irritable bowel syndrome before the 
onset of aggravation.   
  
The examiner must provide a 
comprehensive report including complete 
rationales for all opinions and 
conclusions reached, citing the 
objective medical findings leading to 
the conclusions.

7.  After the above development, 
schedule the Veteran for a VA audiology 
examination to determine the nature and 
etiology of the Veteran's hearing loss.  
The claims file must be made available 
to, and reviewed by, the examiner.  
		
Appropriate testing, including a 
controlled speech discrimination test 
(Maryland CNC) and a puretone audiometry 
test, should be conducted.  The results 
of puretone threshold testing for 500, 
1000, 2000, 3000, and 4000 Hertz and 
speech recognition testing using the 
Maryland CNC test are to be reported.

The examiner should provide an opinion 
as to whether it is at least as likely 
as not (50 percent or greater 
probability) that any diagnosed hearing 
loss had its clinical onset during 
active service or is related to any in-
service disease, event, or injury, 
including noise exposure.  

In providing this opinion, the examiner 
should acknowledge the Veteran's 
exposure to acoustic trauma in service 
from January 1956 to September 1959 
working as an engineer in the Navy in 
the engine room with no ear protection, 
in addition to any exposure to noise 
outside of his service. 
  
The examiner also should note that the 
fact that there was no diagnosis of 
hearing loss in service is not, by 
itself, a sufficient reason to deny 
service connection for hearing loss.

The examiner must provide a 
comprehensive report including complete 
rationales for all opinions and 
conclusions reached, citing the 
objective medical findings leading to 
the conclusions.

8.  After completing the above, and any 
other development as may be indicated 
by any response received as a 
consequence of the actions taken in the 
preceding paragraphs, the Veteran's 
claims should be readjudicated based on 
the entirety of the evidence.  The RO 
must consider and notify the Veteran of 
both the old and the new versions of 
the relevant spine criteria, effective 
prior to and as of September 26, 2003.  
The Veteran's peripheral neuropathy of 
the lower extremity ratings should be 
considered from July 14, 1999.  If the 
claims remain denied, the Veteran and 
his representative should be issued a 
supplemental statement of the case.  An 
appropriate period of time should be 
allowed for response.

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).




______________________________________________
S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs