Citation Nr: 1333974 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 11-25 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an increased rating in excess of 10 percent for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from November 1962 to May 1963. This appeal comes to the Board of Veterans' Appeals (Board) from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge in May 2013; the hearing transcript has been associated with the file and has been reviewed. 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 required in this case to ensure that there is a complete record upon which to decide the issue of an increased rating for degenerative disc disease of the lumbar spine, so that the Veteran is afforded every possible consideration. The Veteran underwent a VA examination in May 2009. With respect to incapacitating episodes, the examiner stated that the Veteran works in his own business and has not missed work. With respect to flare-ups, the examiner stated that the Veteran has flare-ups that last a few seconds every day when going from sitting to standing or lifting anything greater than 40 pounds. The examiner found no spasms on examination. At his May 2013 Board hearing, the Veteran testified he has incapacitating episodes every couple weeks, for a total of 20 to 30 a year, with each episode lasting all day. He said that during the episodes he is in pain and can't straighten his back. He reported during the episodes he stays still because he can't do anything with his back. He noted he has not been prescribed bed rest by a doctor for the episodes. He also reported he has muscle spasms in his lumbar spine every day. Thus, the Veteran's testimony suggests that his lumbar spine condition has worsened over the four years since his last VA examination. Specifically, he testified to an increase in the duration and severity of flare-up episodes and the presence of daily muscle spasms. Therefore, to ensure that the record reflects the current severity of the Veteran's conditions, a more contemporaneous examination, with findings responsive to the applicable rating criteria, is needed to properly evaluate the Veteran's service-connected disabilities. Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record does not adequately reveal current state of claimant's disability, fulfillment of duty to assist requires contemporaneous medical examination, particularly if there is no additional medical evidence which adequately addresses level of impairment since previous examination); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (court determined that the Board should have ordered contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating); Littke v. Derwinski, 1 Vet. App. 90, 92 (1990) (VA's duty to assist includes the conduct of a contemporaneous medical examination, in particular where it is contended that a service-connected disability has become worse). The examination conducted pursuant to this remand should include a review of the Veteran's claims file and past clinical history, with particular attention to the current severity of his lumbar spine condition, as well as any significant pertinent interval medical history since his last VA examination in May 2009. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to evaluate the nature and severity of the Veteran's degenerative disc disease of the lumbar spine. The claims file must be provided to the examiner for review. Any indicated studies should be completed; the studies should specifically include range of motion studies of the spine and any studies indicated to ascertain whether or not the Veteran's back disability has neurological manifestations. The examiner should further describe any pain on motion, weakened movement, excess fatigability, spasms, and incoordination present in the spine. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the spine due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. 2. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ M. TENNER Acting 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).