Citation Nr: 1332494 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 09-28 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an increased rating for a low back strain, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from May 1971 to May 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), in which the RO granted service connection and assigned an evaluation of 20 percent for chronic low back syndrome. Historically service connection for a low back strain was granted in a rating action in September 1973, and a noncompensable rating was assigned. By rating action in June 2008 the RO increased the noncompensable rating to 20 percent. The Veteran appealed this rating decision. In August 2013, the Veteran testified before the Board at a hearing at the RO. A transcript of that hearing has been associated with the claims folder. 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. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). REMAND The Veteran was afforded a VA medical examination in March 2011 to assess the severity of his service-connected low back disorder. The Veteran complained of severe chronic low back pain that had weekly flare-ups lasting for hours. These were alleviated by rest and valium. He reported additional loss of motion during flare-ups due to pain. He stated that his back pain had become progressively worse since its onset. Physical examination of the back revealed evidence of pain on motion. Range-of-motion testing revealed flexion to 45 degrees, extension to 5 degrees, right side flexion to 20 degrees, left side flexion to 20 degrees, right rotation to 20 degrees, and left rotation to 20 degrees. The examiner noted objective evidence of pain on active range of motion and following repetitive motion. No additional limitation of motion was noted. The impression was mild progression of degenerative disc disease (DDD) at L4-L5 and L5-S1. The examiner noted the Veteran claimed he could not work as an electric technician due to his low back disorder The effect on occupational activities were decreased mobility and problems lifting and carrying. The effect on activities of daily living was difficulty with exercising and recreational activities. He could do light chores and grocery shopping and was able to care for all activities of daily living. The VA examiner in March 2011 indicated that the claims file and medical records were not provided for review prior to examination. In addition the examiner did not provide any medical opinion nor was he/she asked to do so. The Board finds the March 2011 VA examination report to be inadequate for rating purposes. Where a medical examination does not contain sufficient detail to decide the claim on appeal, the Board must return the report as inadequate for evaluation purposes. Hayes v. Brown, 9 Vet. App. 67, 73 (1996); see also, Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (noting that once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes). A medical opinion is considered adequate only "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). On remand, the Veteran should be provided a comprehensive VA examination, and his claims file and medical records should be provided to the examiner for review prior to examination. Subsequent to the August 2013 Travel Board hearing, the Veteran submitted additional treatment records from The Permanente Medical Group for his service-connected disability. Since the claim is being remanded for additional development, it should be updated to include all current VA and private treatment records, including from Kaiser-Permanente, compiled since the March 2011 VA examination. See 38 C.F.R. § 3.159(c) (2); Bell, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should obtain all VA medical records generated since the time of the March 2011 VA examination. The AMC/RO, after receiving any appropriate releases, should also obtain any other medical records that may be available from private sources identified by the Veteran, including The Permanente Medical Group. 2. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo a new VA spine examination. The claims file must be made available to the examiner. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report). The examiner should indicate whether the Veteran has any neurological manifestation(s) of lumbar spine disability, to include radiculopathy of the right and/or left lower extremity. For each neurological impairment identified, the examiner should assess the severity of such disability as mild, moderate, moderately severe, or severe. The examiner should conduct range of motion testing of the thoracolumbar spine (expressed in degrees). The examiner should render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner is requested to refer to the functional range of motion of the Veteran's thoracolumbar spine. The examiner should indicate whether, and to what extent, the Veteran experiences any functional loss of the thoracolumbar spine due to pain or any of the other symptoms noted above during flare-ups and with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. 3. Upon completion of the above, the AMC/RO should readjudicate the claim. If the claim is not granted in full, the Veteran and his representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must be returned to the Board for appellate disposition. 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 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). _________________________________________________ JAMES L. MARCH 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).