Citation Nr: 1332537 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 10-06 286 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a higher initial rating in excess of 10 percent for lumbar spine degenerative disc disease. 2. Entitlement to a higher initial rating in excess of 10 percent for right lower extremity radiculopathy, effective May 8, 2008. 3. Entitlement to a higher initial rating in excess of 20 percent for left lower extremity radiculopathy, effective May 8, 2008. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Bordewyk, Alicia R. INTRODUCTION The Veteran served on active duty from September 1963 to March 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which granted service connection for the lumbar disc disease, with a 10 percent disability rating assigned, effective January 15, 2003, granted service connection for right lower extremity radiculopathy, with a 10 percent disability rating assigned, effective May 8, 2008, and granted service connection for the left lower extremity radiculopathy, with a 10 percent disability rating assigned, effective May 8, 2008. In a December 2009 rating decision, an increased disability rating of 20 percent was assigned for left lower extremity radiculopathy, effective May 8, 2008. A claimant is presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the claim for a higher initial rating for left lower extremity radiculopathy remains before the Board. 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 In an April 2009 statement, the Veteran's private treatment provider stated that he had treated the Veteran for his back and lower extremity disabilities for 16 years. Treatment records from this physician have not been obtained. VA has a duty to obtain relevant records of private treatment. 38 U.S.C.A. § 5103A(b) (West 2002); Massey v. Brown, 7 Vet. App. 204 (1994). These records are relevant to the appeal and efforts to obtain them should be conducted following the procedures under 38 C.F.R. § 3.159 (2013). The claims file contained one VA treatment record from March 2008 and records from July 2010 to July 2011. It appears that there may be outstanding treatment records, either before or after the March 2008 record or since July 2011. Where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992). As this evidence is relevant to the Veteran's claim, all relevant records in VA's possession must be obtained. Finally, the last VA examination in this case was conducted in July 2010. In a November 2011 and an August 2013 brief, the Veteran's representative asserted that his service-connected symptoms had worsened in severity or were worse than shown upon the last examination. The Board finds that a new VA examination is necessary to determine the current severity of the Veteran's lumbar spine and bilateral lower extremity disabilities, to include the impact of pain and flare-ups. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide releases authorizing VA to obtain all records of private treatment, including with the physician who provided the April 2009 statement. If the Veteran fails to complete necessary authorizations, tell him that he may obtain and submit the records himself. If any records cannot be obtained, inform the Veteran of this fact, tell him what efforts were made to obtain the records, and advise him of any additional development that will be undertaken. 2. Obtain all outstanding VA medical records and associate them with the claims file or Virtual VA. All efforts to obtain these records must be documented in the claims file. Such efforts should continue until they are obtained, it is reasonably certain that they do not exist, or that further efforts would be futile. 3. Once the above development has been completed, the Veteran should be afforded a VA examination with a qualified physician to determine the current severity of the service-connected lumbar spine and bilateral lower extremity disabilities. The examiner should review the claims folder, a copy of this remand, and any evidence in Virtual VA. All indicated testing should be conducted. The examiner should report the range of motion of the lumbar spine in degrees. The examiner should report whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the disability. If pain on motion is observed, the examiner should indicate the point at which pain begins. Furthermore, any additional loss of motion or function (decreased or abnormal excursion, strength, speed, coordination, or endurance) with repetitive movement must be noted. The examiner must inquire as to periods of flare-up and note the frequency and duration of any such flare-ups. The examiner must equate all functional losses due to pain, incoordination, fatigue, weakness, and flare-ups, etc., to additional loss of motion (beyond what was shown on clinical examination). In other words, all functional deficits should be described by equating the collective effect of those deficits to a level of disability contemplated by a certain limitation of motion even though such limited motion is not shown on the examination. (This requires a certain degree of conjecture on the examiner's part, but is required for rating the lumbar spine disability.) The examiner should report all neurologic impairment resulting from the service-connected lumbar spine and bilateral lower extremity disabilities. The examiner should also opine as to the severity of that impairment, in terms of mild, moderate, or severe. If there is neurologic impairment of the lower extremities that is not related to the service connected back or lower extremity disabilities, the examiner should so report. The examiner should comment on the effect the service-connected disability has on the Veteran's ability to secure or follow a substantially gainful occupation. The examiner should set forth all examination findings, along with a complete rationale for any opinions and conclusions expressed. 4. The agency of original jurisdiction (AOJ) should review the examination report to ensure that it contains the information, opinions, and rationales requested in this remand. 5. After completion of all requested and necessary development, the AOJ should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter 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 2002 & Supp. 2012). _________________________________________________ THOMAS J. DANNAHER 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) (2013).