Citation Nr: 1335735 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 09-44 108 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for lumbosacral spine degenerative facet arthritis and spondylosis. 2. Entitlement to an initial rating in excess of 10 percent for a right ankle sprain. 3. Entitlement to an initial rating in excess of 10 percent for a left ankle sprain, status post fracture. 4. Entitlement to an initial rating in excess of 10 percent for right knee degenerative arthritis and patellofemoral syndrome. 5. Entitlement to an initial compensable rating for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Gielow, Counsel INTRODUCTION The Veteran had active duty service from July 1987 to August 2008. Among her awards and decorations, she is the recipient of a Bronze Star Medal. This matter comes before the Board of Veterans' Appeals (Board) from a November 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, as part of the Benefits Delivery at Discharge (BDD) program. The purpose of the BDD program is to help ensure a smooth transition from military to civilian status by allowing service members to file pre-discharge claims for disability compensation with VA. Jurisdiction over the matter, however, is retained by the RO in Atlanta, Georgia. In August 2012, the Veteran testified at a local hearing before a Decision Review Officer (DRO). A transcript of this hearing was prepared and associated with the claims file. 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 After carefully reviewing the record, the Board determines that a remand is necessary for additional development: I. Outstanding Private Treatment Records As an initial matter, the Veteran has identified outstanding private treatment records that are relevant to the current claims. Specifically, during the August 2012 DRO hearing, the Veteran testified that she had been receiving recent treatment for each of disabilities on appeal from Dr. I., her general practitioner, at Phoebe Putnam. See DRO Transcript (noting treatment for these disabilities at least up until May 2012). She then stated she had just transferred to Fox Medical Center and would be getting additional treatment from this new facility, beginning in September 2012. Id. Accordingly, on remand, the RO/AMC should ask the Veteran to provide VA Form 21-4142s (Authorization and Consent to Release Information to the Department of Veterans Affairs), so that VA may make attempts to obtain these relevant records on remand. See 38 C.F.R. § 3.159(c)(1). II. Spine and Neurological Examinations Next, with regard to the claim for entitlement to an initial rating in excess of 10 percent for lumbosacral spine degenerative facet arthritis and spondylosis, a remand is necessary for additional development because the existing VA examinations are inadequate to evaluate the full extent of the Veteran's disability. The Board notes that the Veteran's spine disability is currently rated under the General Rating Formula for Rating Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a. According to Note (1) of the General Rating Formula, objective neurological abnormalities are to be rated separately, under an appropriate diagnostic code. Furthermore, she may also be rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. Id. Therefore, if IVDS or associated radiculopathy is shown, this may result in either a higher rating (for IVDS) or the assignment of separate ratings (for radiculopathy) for the Veteran's lumbosacral spine disability. Unfortunately, there is conflicting information in the claims file as to whether the Veteran has, or has ever had, IVDS or radiculopathy. For example, the September 2012 VA examination determined that the Veteran has IVDS of the thoracolumbar spine, resulting in at least six weeks of incapacitating episodes over the past twelve months and that there was moderate radiculopathy with involvement of the sciatic nerve bilaterally. However, after a review of the prior examination, the May 2013 VA examiner came to an opposite conclusion, stating that the Veteran "has not been diagnosed with IVDS or radiculopathy. No evidence of radiculopathy is noted on exam." Therefore, the Board finds that additional testing and clarification is necessary. Specifically, upon remand, the VA examiner must conduct additional testing of the spine-to include an assessment of MRI and X-ray findings and a thorough neurological examination-to identify whether the Veteran has IDVS and/or any associated neurological abnormalities. See 38 C.F.R. § 4.2 (2012) (noting that if the examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (finding that when the VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate). III. Recent VA Treatment Records Additionally, a review of Virtual VA reflects that VA records through April 2012 have been associated with the claims file. If the Veteran has obtained any additional VA treatment with respect to her spine, ankles, right knee, or hypertension, these records should also be obtained on remand. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any relevant VA treatment records relating to the spine, ankles, right knee, or hypertension from April 2012 through the present. 2. Ask the Veteran to provide VA Form 21-4142s for any outstanding private treatment records, including from Phoebe Putney and Fox Medical Clinic. Following receipt of authorization with sufficient identifying information, obtain these records. Two attempts should be made to obtain relevant private records, unless a formal finding can be made that a second request for such records would be futile. If such records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 3. After accomplishing the development requested in steps (1) and (2) above, schedule the Veteran for spine and peripheral nerve VA examinations to determine the nature and extent of her service-connected lumbosacral spine disorder, as well as any IVDS or associated neurological manifestations. The claims file [i.e. both the paper claims file and any relevant records contained in the paperless claims file(s)] must be provided to and reviewed by the examiner. (a) When conducting range of motion testing of the spine, the examiner is directed to describe any functional loss resulting from factors (such as pain, flare-ups, etc.) impacting the Veteran's ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. To the extent possible, this should be expressed in terms of additional degrees of limitation of motion. (b) MRI imaging and/or X-rays of the lumbosacral spine are to be obtained and reviewed. The examiner is directed to comment on the presence or absence of IVDS and, if present, to identify the frequency of incapacitating episodes. In rendering this opinion, the examiner is requested to address the conflicting accounts of IVDS noted in the September 2012 and May 2013 VA examinations. All pertinent symptomatology and findings should be reported in detail, and any indicated diagnostic tests should be accomplished. (c) A thorough neurological examination is to be obtained and reviewed. The examiner is directed to comment on the presence or absence of neurological symptomatology associated with the Veteran's service-connected lumbosacral spine disorder, and if present, to identify the nerve(s) involved. In rendering this opinion, the examiner is requested to address the conflicting accounts of radiculopathy noted in the September 2012 and May 2013 VA examinations, as well as the Veteran's complaints of radiating pain (see DRO hearing). All pertinent symptomatology and findings should be reported in detail, and any indicated diagnostic tests should be accomplished. All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If any benefit sought on appeal remains denied, in whole or in part, the Veteran and her representative should be provided with a supplemental statement of the case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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). These claims 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). _________________________________________________ WAYNE M. BRAEUER 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).