Citation Nr: 1330165 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 10-01 111 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased rating for status post surgery lumbar intervertebral disc syndrome (IVDS) and spinal stenosis, rated 0 percent disabling prior to April 1, 2013, and 10 percent disabling as of April 1, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD L. J. Vecchiollo, Counsel INTRODUCTION The Veteran served on active duty from February 2000 to February 2004, and from October 2004 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). A May 2009 rating decision denied an increased compensable rating for status post lumbar spine strain following a rating reduction in October 2008 due to failure to report to a VA review examination. A May 2013 rating decision reclassified the low back condition as status post surgery lumbar IVDS and spinal stenosis, and granted an increased, 10 percent, rating, effective April 1, 2013. The decision also granted service connection for right sciatica and for a scar of the lumbar spine. The Veteran has not expressed disagreement with the evaluation or effective date of the right sciatica or scar disabilities. Thus, these issues are not before the Board. The issue of entitlement to a temporary total rating under 38 C.F.R. § 4.30 following back surgery has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, 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 While further delay is regrettable, the Board finds that additional development is necessary. The Board notes the Veteran underwent surgery for her back disability on December 13, 2012 at Hilton Head Hospital. Specifically, she underwent a right L5-S1 microlumbar discectomy with removal of a large right L5-S1 herniated nucleus pulposus and lateral recess decompression with medial facetectomy and partial L5-S1 discectomy. It was noted that she would be mobilized with physical therapy. A VA treatment note suggests the surgery was accomplished through Tri Care. A VA treatment note from January 2013 indicates the Veteran reporting that she was told to wear a hard plastic corset brace until March. There are no follow-up records or physical therapy records from Tri Care physicians. Such should be requested on remand. Moreover, the Board notes that the Veteran underwent a VA examination in April 2013. The range of motion testing includes response boxes for actual motion and the point at which pain begins. However, the examiner listed all range of motion as being 0 degrees, yet suggests in other portions of the examination that she does have motion, but that it is reduced. In this regard, the examiner did not check off the box signifying less motion than normal; rather he checked off the box for weakened movement. It was noted that repetitive motion could not be accomplished due to severe lower back pain and tenderness. Gait and posture were normal and there were no muscle spasms or atrophy. The examiner did not indicate that the Veteran suffers from ankylosis. Straight leg raising test was able to be performed, but was positive. The examiner also checked off the box for incapacitating episodes, yet it is unclear whether such was due to her surgery. Indeed, the record does not support a finding of prescribed bed rest. Due to the inconsistencies in the April 2013 examination, the Board finds a new examination should be scheduled. Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain relevant VA treatment records dating since March 2013. 2. Ask the Veteran to provide the names and addresses of all medical care providers who treated her for her back disability since October 2008, to include the pre- and post-operative treatment and physical therapy received through Tri Care or other non-VA providers. After securing the necessary release, the RO/AMC should request any relevant records not already contained in the claim file. If requested records are not available, the Veteran should be notified of such. 3. After the above records are obtained, to the extent available, the Veteran should be afforded a VA spine examination for the purpose of determining the current nature and extent of her service-connected post operative lumbar spine disability. The claims file must be reviewed in connection with the examination. All indicated studies should be performed, including range of motion testing. Both the actual range of motion and the degree at which pain begins should be reported. If 0 degrees is again listed for all ranges of motion, the examiner should indicate whether the Veteran's spine is ankylosed or whether the lack of motion is voluntary. 4. After the above has been completed to the extent possible, the RO/AMC should readjudicate the claim. On readjudication the RO/AMC should be mindful of the rule against pyramiding in 38 C.F.R. § 4.14 and that a rating based on incapacitating episodes should not be combined with the separate radiculopathy disability. If the claim remains denied, send the Veteran and her representative a supplemental statement of the case and give them time to respond before the case is 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 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). _________________________________________________ K. A. BANFIELD 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).