Citation Nr: 1332769 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 08-28 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent as of May 28, 2009, for degenerative disc disease and degenerative arthritis of the lumbar spine. 2. Entitlement to restoration of service connection for type II diabetes mellitus with early diabetic neuropathy of the lower extremities. 3. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities. 4. Entitlement to service connection for peripheral neuropathy of the bilateral lower extremities. 5. Whether a separate evaluation for bowel and bladder involvement of service-connected degenerative disc disease of the lumbar spine is warranted. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Hudson, Associate Counsel INTRODUCTION The Veteran had active military service from June 1965 to June 1968 and from May 1979 to August 1993 and received a Silver Star, Bronze Star, and Purple Heart. This case comes before the Board of Veterans' Appeals (Board) on appeal of December 2007 and April 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. The Veteran testified before a VA Decision Review Officer (DRO) at a May 2009 hearing conducted at the RO. A transcript of the hearing is of record. In December 2011, the Board issued a decision. In September 2012, the United States Court of Appeals for Veterans Claims (Court), vacated the Board's decision and remanded the case, pursuant to a Joint Motion for Partial Remand (JMR) with respect to the claim for a rating in excess of 20 percent for degenerative disc disease and degenerative arthritis of the lumbar spine as of May 28, 2009. The Court's order indicated that all other issues adjudicated in the December 2011 Board decision were abandoned as causes of action by the Veteran. The December 2011 Board decision also remanded four issues: service connection for type II diabetes mellitus with early diabetic neuropathy of the lower extremities; service connection for peripheral neuropathy of the bilateral upper extremities; service connection for peripheral neuropathy of the bilateral lower extremities; and whether a separate evaluation for bowel and bladder involvement of service-connected degenerative disc disease of the lumbar spine is warranted. These issues were not subject to the September 2012 Court order and no additional development has occurred. 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 A remand is necessary for further evidentiary development. The Veteran claims entitlement to a disability rating in excess of 20 percent as of May 28, 2009, for his service-connected degenerative disc disease and degenerative arthritis of the lumbar spine. The September 2012 JMR indicated that a remand was necessary in order to conduct a new VA lumbar spine examination. The most recent VA spine examination was conducted in May 2009. However, this VA examination does not reflect that repetitive motion testing was performed. Additionally, while painful motion was reflected and the VA examiner noted the Veteran's complaints of flare-ups, the examiner did not indicate how much additional functional loss might be expected due to flare-ups and repetitive use. Thus a remand is required in order to obtain a new VA lumbar spine examination. See 38 C.F.R. § 4.2 (2013) (when an examination report does not contain sufficient detail, it is incumbent upon the adjudicator to return the report as inadequate for evaluation purposes). In an April 2008 rating decision, service connection for type II diabetes with early diabetic neuropathy of the lower extremities was severed, effective July 1, 2008. In an August 2009 VA Form 9, the Veteran, for the first time, clearly indicated he believed the severance of service connection was in error. The RO has not issued a statement of the case (SOC) to the Veteran which addresses this disagreement. The proper course of action when a timely notice of disagreement has been filed is to remand the matter to the RO. See Manlincon v. West, 12 Vet. App. 238 (1999). Appropriate action, including issuance of an SOC, is now necessary with regard to this issue. 38 C.F.R. § 19.26 (2013). The Veteran will then have the opportunity to file a timely substantive appeal if he wishes to complete an appeal. Furthermore, the Board observes the Veteran was provided a VA examination in May 2009 to address the etiology of his peripheral neuropathy of the bilateral upper and lower extremities. While the VA examiner provided an opinion regarding whether the Veteran's peripheral neuropathy is related to diabetes, no opinion was offered regarding whether this condition is otherwise related to the Veteran's active service. As such, the Veteran must be provided a new VA examination to determine whether his peripheral neuropathy is etiologically related to his active service. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). Finally, the Board observes the May 2009 VA examination report documents the Veteran describing some bladder and bowel involvement with both urinary and mild fecal leakage and incontinence. However, the VA examiner noted he "could not confirm this," and also failed to indicate whether such symptomatology, if accurate, is related to the Veteran's service-connected lumbar spine disability. The Board notes that separate evaluations may be warranted for bowel and bladder impairment secondary to a spine disability. See 38 C.F.R. § 4.71a, General Ratings Formula for Diseases and Injuries of the Spine, Note 1 (2013). As such, a new VA examination is necessary. See 38 C.F.R. § 4.2. The most recent treatment records from the Salt Lake City VA Medical Center (VAMC) are dated from March 2009. Additionally, in August 2013, the Veteran submitted new medical evidence that identifies relevant private treatment providers. Accordingly, on remand, records of previously unobtained VA and private treatment for the Veteran's lumbar spine disability, type II diabetes mellitus, peripheral neuropathy or bowel and bladder impairment, should be obtained. See 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 pertinent). The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who have treated the Veteran for any lumbar spine, type II diabetes mellitus, peripheral neuropathy or bowel and bladder impairment issues since April 2008. After securing the necessary release(s), obtain these records, including all pertinent treatment records from the Salt Lake City VAMC from March 2009 to the present; Dr. S. D. S. with Eastern Idaho Medical Consultants, from January 2009 to the present; Dr. G. A. with the Eastern Idaho Spine Center, from November 2008 to the present; Dr. M. K. J. with the Teton Foot and Ankle Center from February 2008 to present; Dr. B. H. G., from May 2008 to present; Dr. J. T. in Idaho Falls, Idaho from April 2008 to present; and, Mountain View Hospital in Idaho Falls, Idaho from January 2008 to present. 2. Provide the Veteran an SOC with respect to the issue of entitlement to restoration of service connection for type II diabetes with early diabetic neuropathy of the lower extremities. All appropriate appellate procedures should then be followed. The Veteran should be advised that he must complete his appeal of this issue by filing a timely substantive appeal following the issuance of an SOC. 3. After completion of the foregoing, schedule the Veteran for a VA examination to determine the nature and etiology of any peripheral neuropathy of the bilateral upper and/or lower extremities. The claims file, including this remand, must be made available to the examiner for review. All appropriate tests and studies should be conducted, and any consultations deemed necessary should be accomplished. After reviewing the record and examining the Veteran, the examiner should address whether it is at least as likely as not (i.e., probability of 50 percent) that any peripheral neuropathy is etiologically related to the Veteran's active military service. A full rationale must be provided for all stated medical opinions. Note: if the examiner concludes that the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why this opinion would be speculative and what, if any, additional evidence would permit such an opinion to be made. 4. After completion of the foregoing, schedule the Veteran for a VA examination to determine the nature and severity of any bowel and/or bladder impairment. The claims file, including this remand, must be made available to the examiner for review. All appropriate tests and studies should be conducted, and any consultations deemed necessary should be accomplished. If any such bowel and/or bladder condition is found, the examiner should address whether it is at least as likely as not (i.e., probability of 50 percent) that such condition is associated with the Veteran's service-connected lumbar spine disability. A full rationale must be provided for all stated medical opinions. Note: if the examiner concludes that the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why this opinion would be speculative and what, if any, additional evidence would permit such an opinion to be made. 5. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected lumbar spine disability. The claims file, to include a copy of this Remand, must be made available to the examiner. a) All indicated tests and studies should be performed, including repetitive motion testing and range of motion studies in degrees. b) The examiner should determine whether the lumbar spine disability is manifested by weakened movement, excess fatigability, or incoordination. These determinations should be expressed in terms of the additional range-of-motion loss due to any weakened movement, excess fatigability, pain, flare-ups or incoordination, expressed in degrees. The report must specify the degree at which pain begins and the degree at which pain effectively prevents further motion. c) The examiner should state whether the Veteran's lumbar spine is: (i) currently in a flare-up; (ii) the frequency of such flare-ups, including whether such is intermittent/unpredictable and any specific periods during which a flare-up will occur; (iii) what symptomatology is associated/exacerbated by the Veteran's flare-ups; and (iv) whether such flare-ups additionally limit the Veteran's functional impairment of his lumbar spine. If the Veteran is not currently in a flare-up, the examiner should attempt to estimate the additional limitation of motion and functional limitation the flare-ups have on the Veteran's lumbar spine. 6. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claims based on the entirety of the evidence. If any benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be provided with 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 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). _________________________________________________ M. E. LARKIN 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).