Citation Nr: 1334553 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-22 283 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to an increased evaluation in excess of 20 percent for the service-connected degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1974 to August 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2009 rating decision of the RO. In August 2012, the Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO in Waco, Texas. A copy of the hearing transcript is of record. By way of history, a November 1994 rating decision initially granted service connection for a low back disability and assigned a noncompensable evaluation effective on September 1, 1994. A December 2004 rating decision increased the rating to 10 percent effective on July 23, 2004. A March 2012 rating decision then increased the rating to 20 percent on June 28, 2010. A review of the electronic claims processing systems - Virtual VA and the Veterans Benefits Management System - reveals documents that are either duplicative or not pertinent to the present appeal. The appeal is being remanded to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND The Board finds that further evidentiary development is warranted in this case. The last VA examination of record is the general examination in June 2010. The examination covered relevant range of motion testing for the lumbar spine and neurological testing. During his August 2012 Board hearing, the Veteran testified that he currently had lumbar spondylosis that had gotten worse since the June 2010 VA examination. Also, he indicated that, his since his last examination, he had had treatment by way of epidural injections and radiofrequency ablation for the service-connected low back disability and radiating pain down his leg, respectively. He spoke of his leg giving out on walks and his having spasms approximately three to four times during a two-mile walk (with leg stiffening). The Veteran testified that he was currently employed in a position that required long periods of sitting, when he felt numbness in his leg. He presented testimony as to the radiating pain in his leg, but he stated that he had not been told that he had radiculopathy specifically. However, he asserted that his private physician had relayed to him that the pain radiating into his leg was related to his back disability. The Board notes that the July 2010 rating decision denied service connection for leg numbness as secondary to the service-connected low back disability. However, the record has since revealed worsening of neurological abnormalities that may be associated with the Veteran's back disability. Thus, additional development is also necessary to determine whether a separate evaluation is warranted for objective neurological abnormalities associated with the service-connected low back disability under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Note 1 to the General Rating Formula provides that any objective neurologic abnormalities associated with an orthopedic disability, including, but not limited to, bowel or bladder, are to be evaluated separately under an appropriate diagnostic code. Similarly, the regulations provide that subsequent manifestations of the same disease are service connected unless clearly attributable to intercurrent causes. Thus, a remand for a new VA examination is necessary at this juncture to evaluate the current extent and severity of the service-connected low back disability and any associated neurological manifestations. Accordingly, the case is REMANDED for the following action: 1. The RO should take appropriate steps to contact the Veteran and request that he identify all VA and non-VA health care providers, other than those whose records are already associated with the claims folder, and have treated him for his service-connected low back disability or any related neurological condition. The aid of the Veteran in securing these records, to include providing the necessary authorizations, should be enlisted, as needed. Copies of any outstanding records should be associated with the claims file for the purpose of review. 2. The RO then should have the Veteran scheduled for orthopedic and neurological examinations in order to ascertain the nature and current severity of the service-connected low back disability. The claims file should be made available to the examiner for review in connection with the examination. All clinical and special test findings should be clearly reported, and pertinent orthopedic and neurological findings should be reported. The examination of the spine should include appropriate testing including range of motion studies. With regard to range of motion testing, the examiner should report at what point (in degrees) pain is elicited as well as whether there is any other functional loss due to weakened movement, excess fatigability or incoordination. The examiner should specifically state if ankylosis and muscle spasm are present. The examiner also should report any specific information as to the frequency and duration of incapacitating episodes in the past twelve months, and a description of all neurologic manifestations, to include, but not limited to, radiating pain into an extremity, and bowel or bladder impairment. All appropriate neurological tests and studies, to include MRI, EMG and a nerve conduction study should be accomplished (with all findings made available to the examiner prior to completion of the report), and all clinical findings should be reported in detail. If the examiner finds that any such testing is not required to fully evaluate the current extent of the service-connected low back disability this must be clearly stated and fully explained. The examiner should identify the existence, and frequency or extent, as appropriate, of all neurological symptoms associated with the service-connected low back disability. The examiner should also offer an opinion as to whether the Veteran has any separately ratable neurological residual, such as radiculopathy as a manifestation of the service-connected low back disability. In addition, the examiner should expressly address the etiology of any numbness/radiculopathy that the Veteran describes in his leg(s). He/she should note the previous reports of radicular symptomatology of record, to include the VA examination findings of April 2009, June 2010, and 2012 private treatment records. If applicable, the examiner should provide an assessment as to whether any impairment of the nerves is best characterized as resulting in mild, moderate, moderately severe or severe incomplete paralysis; or complete paralysis. The examiner should set forth all examination findings and the complete rationale for the conclusions reached in his/her report. 3. After completing all indicated development, the RO should readjudicate the claim remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a fully responsive Supplemental Statement of the Case and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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). _________________________________________________ STEPHEN L. WILKINS 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).