Citation Nr: 1335770 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 10-03 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to a compensable initial evaluation for degenerative disc disease of the lumbosacral spine, status post decompression and fusion, prior to October 28, 2011. 2 Entitlement to an evaluation in excess of 30 percent for degenerative disc disease of the lumbosacral spine, status post decompression and fusion, since October 28, 2011. 3. Entitlement to a compensable initial evaluation for left hip disability, status post labral tear and arthroscopy. 4. Entitlement to a compensable initial evaluation for peripheral vascular disease of the lower extremities, status post stent placement in the left lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to August 1978, and from September 2000 to October 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The issues relating to the proper evaluation for the Veteran's service-connected degenerative disc disease of the lumbosacral spine, status post decompression and fusion, both prior to and since October 28, 2011, are remanded to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. The degree of disability exhibited by the Veteran's left hip disability at the time of his entrance into active duty service in September 2000 was not ascertainable. 2. The Veteran's left hip disability, status post labral tear and arthroscopy, has been manifested by a range of motion consisting of flexion to 70 degrees, with pain at 50 degrees, and extension to 5 degrees; 4/5 strength; tenderness; and complaints of pain, weakness, and reduced range of motion. X-ray examination of the left hip revealed mild degenerative changes. 3. The Veteran's peripheral vascular disease of the lower extremities, status post stent placement in the left lower extremity, has been manifested by diminished pedal pulses, with no claudication or other symptoms. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation of 10 percent, but no more, for left hip disability, status post labral tear and arthroscopy, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5252 (2013). 2. The criteria for a separate evaluation of 10 percent for limitation of extension, left hip disability, status post labral tear and arthroscopy, have been met. 38 U.S.C.A. §§ 1155 , 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 4.71a, Diagnostic Code 5251 (2013). 3. The criteria for a compensable initial evaluation for peripheral vascular disease of the lower extremities, status post stent placement in the left lower extremity, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 4.104, Diagnostic Code 7114 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013); 38 C.F.R. § 3.159(b) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claims seeking higher evaluations for his left hip disability, status post labral tear and arthroscopy; and peripheral vascular disease of the lower extremities, status post stent placement in the left lower extremity, arise from his disagreement with the initial evaluations assigned to each of these conditions following the grant of service connection for each. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has also fulfilled its duty to assist the Veteran by obtaining identified and available evidence needed to substantiate his claims, including VA treatment records, private treatment records, and records from the Social Security Administration; and by providing the Veteran with the appropriate medical examinations to determine the severity of the disabilities on appeal. In October 2011, the RO provided the Veteran with VA examinations for the spine and for the arteries and veins. These examinations were performed by VA examiners who had reviewed the Veteran's claims file, reviewed the history of each disability with the Veteran, examined the Veteran, and included rationales for the conclusions reached therein. The Board finds that these examinations are adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran has not claimed that any of these examinations was inadequate. There is no indication that additional evidence relevant to any of the issues being addressed is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance affects the outcome of this case, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). II. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2013). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2013). In November 2011, the RO issued a rating decision granting an increased evaluation of 30 percent for degenerative disc disease of the lumbosacral spine, status post decompression and fusion, effective October 28, 2011. The Veteran continues to seek a higher evaluation for this disability. See AB v. Brown, 6 Vet. App. 35, 39 (1993). A. Left Hip Disability, Status Post Labral Tear and Arthroscopy The Veteran's service-connected left hip disability, status post labral tear and arthroscopy, has been evaluated pursuant to Diagnostic Code 5252. See 38 C.F.R. § 4.71a, Diagnostic Code 5252. A 10 percent evaluation is warranted for flexion of the thigh that is limited to 45 degrees, a 20 percent evaluation is warranted for flexion limited to 30 degrees, and a 30 percent evaluation is warranted for flexion limited to 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5252. For a 40 percent evaluation, flexion of the thigh must be limited to 10 degrees. Id. In rating limitation of extension of the thigh, a maximum 10 percent rating is assigned for extension limited to 5 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5251. A 10 percent disability rating is also warranted for limitation of rotation of the thigh if the affected leg cannot toe-out more than 15 degrees; or where adduction is limited such that legs cannot be crossed; or for limitation of abduction of the thigh with motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253 (2013). Normal ranges of motion of the hip include hip flexion from 0 degrees to 125 degrees, and hip abduction from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II (2013). In its November 2009 rating decision, the RO granted service connection for the Veteran's left hip disability, status post labral tear and arthroscopy, under a theory of inservice aggravation of a pre-existing condition. Specifically, the RO determined that the Veteran's left hip disability, status post labral tear and arthroscopy, preexisted his second period of active duty service beginning in September 2000. In cases involving aggravation by active service, a rating will reflect only the degree of disability over and above the degree existing at the time of entrance into the active service, whether the particular condition was noted at the time of entrance into the active service or is determined upon the evidence of record to have existed at that time. 38 C.F.R. §§ 3.322(a), 4.22 (2013). Therefore, it is necessary to deduct from the present evaluation the degree, if ascertainable, of the disability existing at the time of entrance into active service, except that if the disability is total, 100 percent, no deduction will be made. Additionally, if the degree of disability at the time of entrance into the service is not ascertainable in terms of the schedule, no deduction will be made. Id. In evaluating the Veteran's left hip disability, status post labral tear and arthroscopy, the RO determined that manifestations of the Veteran's left hip disorder at the time of his entrance into active duty service in September 2000, warranted a 10 percent disability rating, and that manifestations of the Veteran's left hip disorder currently warranted a 10 percent disability rating. Thus, the RO concluded that the Veteran's left hip disability warranted a noncompensable disability evaluation, effective from October 30, 2009, the date of the Veteran's claim for service connection. The preservice degree of disability for the Veteran's left hip disability is not ascertainable. Although there is evidence from 1998 noting the Veteran's complaints of left hip pain, the Veteran's left hip disability it is not shown to have warranted a 10 percent disability evaluation at the time of his entrance into active duty service in September 2000. An October 1998 private treatment report noted that a magnetic resonance imaging scan and lab findings were all negative for any type of left hip problem. On a July 2000 periodic examination, less than two months prior to his start of his active duty service, the Veteran's lower extremities were normal upon physical examination. The examination report further noted that the Veteran had passed his physical test in August 1999. Resolving all reasonable doubt in favor of the Veteran, the Board concludes that a compensable degree of disability is not ascertainable at the time of the Veteran's entrance into the service. 38 U.S.C.A. § 5107(b). Accordingly, no deduction under 38 C.F.R. § 3.322 will be made. As for his current disability evaluation, the RO determined that the Veteran's left hip disability warranted a 10 percent evaluation pursuant to Diagnostic Code 5252, used in rating limitation of flexion of the thigh. Based upon a longitudinal review of the evidence of record, the Board concludes that no more than a 10 percent evaluation is warranted for the limitation of flexion exhibited by the Veteran's left hip disability, status post labral tear and arthroscopy. An October 2011 VA examination of the hip and thigh noted that the range of motion exhibited by Veteran's left thigh included flexion to 70 degrees, with pain beginning at 50 degrees. Although the examination report also noted findings of reduced strength on flexion of 4/5 strength, tenderness, and weakness, the left thigh continued to maintain flexion to 70 degrees on repetitive range of motion testing. Moreover, prior range of motion testing results revealed a greater range of motion. The September 2009 VA general physical examination noted flexion of the left thigh to 103 degrees. While the evidence reflects pain on motion and functional loss, the objective limitation of motion findings do not show that they result in a disability in excess of the currently assigned 10 percent rating. See 38 C.F.R. §§ 4.40, 4.45 (2013); see also Deluca v. Brown, 8 Vet. App. 202 (1995). Consideration has also been given to the potential application of the various provisions of 38 C.F.R. Part 4, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, assigning multiple ratings based on the same symptoms or manifestations would constitute prohibited pyramiding. 38 C.F.R. § 4.14 (2013). Although arthritis in the left hip has been shown by x-ray evidence, arthritis is rated by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2013). Accordingly, a separate rating for arthritis would constitute prohibited pyramiding. Nevertheless, the Board finds that assigning separate ratings based on limitation of extension, flexion, adduction and rotation of the thigh would not amount to pyramiding under 38 C.F.R. § 4.14. See 38 C.F.R. § 4.71a, Diagnostic Codes 5251, 5252, 5253. Separate ratings under different diagnostic codes may be assigned where "none of the symptomatology for any of [the] conditions is duplicative of or overlapping with the symptomatology of the other ... conditions." Estaban v. Brown, 6 Vet. App. 259 (1994). Here the key consideration has been met, in that limitation of extension, flexion, adduction, and rotation concern excursions of movements in different planes, and these limitations therefore constitute different bases for rating the hip. See 38 C.F.R. § 4.45. If these limitations are demonstrated, they must be rated separately to adequately compensate for functional loss associated with the service-connected left hip disability. See 38 C.F.R. § 4.40; see also VAOPGCPREC 9-2004 (separate ratings may be assigned for disability of the same joint where veteran has both limitation of flexion and limitation of extension of same leg). The Board finds that the limitation of extension exhibited by the Veteran's left hip disability, status post labral tear and arthroscopy, warrants assignment of a separate 10 percent disability evaluation pursuant to Diagnostic Code 5251. Specifically, the October 2011 VA examination noted that his left thigh exhibited a range of motion consisting of extension to 5 degrees, with pain beginning at 5 degrees. Under these circumstances, the limitation of extension of the thigh exhibited by the Veteran's left hip disability warrants a separate evaluation of 10 percent. This is the highest evaluation available under Diagnostic Code 5251. The evidence indicates the Veteran's service-connected left hip disability is not manifested by a limitation of rotation to less than 15 degrees; an inability to cross legs; or a flail joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5253, 5254 (2013). Moreover, the Veteran is able to move his left hip, so it is not ankylosed. 38 C.F.R. § 4.71a, Diagnostic Code 5250 (2013). Accordingly, the Board concludes that the Veteran's left hip disability, status post labral tear and arthroscopy, is appropriately rated by separate 10 percent disability evaluations based upon his left limitation of motion in extension and flexion. While there may have been day-to-day fluctuations in the Veteran's service-connected left hip disability, the evidence shows no distinct periods of time during the appeal period, when manifestations varied to such an extent that ratings greater or less than those now assigned would be warranted. Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007); Cf. 38 C.F.R. § 3.344 (2013) The Board has considered whether this claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration. In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Veteran's left hip disability, status post labral tear and arthroscopy, has been manifested by a range of motion consisting of flexion to 70 degrees, with pain at 50 degrees, and extension to 5 degrees; 4/5 strength; tenderness; and complaints of pain, weakness, and reduced range of motion. X-ray examination of the left hip revealed mild degenerative changes. When comparing the disability picture of the Veteran's left hip disability with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by the separate 10 percent disability ratings assigned. Ratings in excess of the evaluations currently assigned are provided for certain manifestations of hip disability, but the evidence of record does not demonstrate that such manifestations have been present in this case. The criteria for the separate 10 percent ratings assigned reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular evaluations are adequate and no referral is required. The Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim for an increased evaluation beyond those assigned in this decision, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Peripheral Vascular Disease of the Lower Extremities, Status Post Stent Placement in the Left Lower Extremity A noncompensable initial evaluation under Diagnostic Code 7114 has been assigned for the Veteran's service-connected peripheral vascular disease of the lower extremities, status post stent placement in the left lower extremity. Under Diagnostic Code 7114, a 20 percent evaluation is assigned for arteriosclerosis obliterans with claudication on walking more than 100 yards, and; diminished peripheral pulses or ankle/brachial index of 0.9 or less. See 38 C.F.R. § 4.104, Diagnostic Code 7114. A 40 percent evaluation is assigned for arteriosclerosis obliterans with claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, and; trophic changes (thin skin, absence of hair, dystrophic nails) or ankle/brachial index of 0.7 or less. Id. A 60 percent evaluation is assigned for arteriosclerosis obliterans with claudication on walking less than 25 yards on a level grade at 2 miles per hour, and; either persistent coldness of the extremity or ankle/brachial index of 0.5 or less. Id. A 100 percent evaluation is assigned for arteriosclerosis obliterans with ischemic limb pain at rest, and; either deep ischemic ulcers or ankle/brachial index of 0.4 or less. Id. The ankle/brachial index is the ratio of the systolic blood pressure at the ankle, as determined by Doppler study, divided by the simultaneous brachial artery systolic blood pressure. The normal index is 1.0 or greater. Id. at Note (1). Evaluate residuals of aortic or large arterial bypass surgery or arterial graft as arteriosclerosis obliterans. Id. at Note (2). These evaluations are for involvement of a single extremity. If more than one extremity is affected, evaluate each extremity separately and combine, using the bilateral factor, if applicable. See 38 C.F.R. § 4.104, Diagnostic Code 7114, Note (3) (2013); see also 38 C.F.R. §§ 4.25, 4.26 (2013). A VA examination for artery and vein conditions was conducted in October 2011. The VA examiner noted that the Veteran's claims file had been reviewed, and the examination report included a historical summary of the Veteran's peripheral vascular disease of the lower extremities. The examination report noted that pain did not occur after walking. Physical examination of the lower extremities revealed normal temperature, absent hair, no ulceration, decreased dorsalis pedis pulse, and decreased posterior tibial pulse. The report noted findings from February 2009 of left and right ankle/brachial index (ABI) of 1.05. The report concluded with a diagnosis of peripheral vascular disease of the lower extremities, status post stenting. The VA examiner noted that this disability did not preclude exercise or exertion, and it produced no significant effect on his occupation. The VA examiner further noted that the Veteran denied any lower extremity claudication, and dorsal pedis pulses were palpable, bilaterally. In September 2009, a VA examination revealed capillary refill time of the lower extremities to be less than two seconds. The report also noted bilateral lower extremity findings of difficult to palpate pedal pulses, cool feet, lukewarm calves, and no tenderness. The report concluded with a diagnosis of peripheral vascular disease, with recent stent placement in the left common iliac artery, with improvement of symptoms. The VA examiner noted that the Veteran did not appear to have any current residuals, as his post procedure ABIs were equal, bilaterally. The VA examiner also noted that this disability would preclude heavy physical labor, but not preclude light physical labor or sedentary labor. The evidence of record does not establish that the Veteran's service-connected peripheral vascular disease of the lower extremities, status post stent placement in the left lower extremity warrants a compensable initial disability rating in either lower extremity. The medical evidence is negative for any current residuals or symptoms, including claudication. Although the VA examiner found diminished pedal pulses, a rating of 20 percent is not warranted unless the diminished peripheral pulses are in conjunction with claudication on walking. The Veteran has not demonstrated symptoms of claudication on walking. As such, a compensable initial disability rating cannot be granted. When comparing the disability picture of the Veteran's left hip disability with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by the separate 10 percent disability ratings assigned. Ratings in excess of the evaluations currently assigned are provided for certain manifestations of hip disability, but the evidence of record does not demonstrate that such manifestations have been present in this case. The criteria for the separate 10 percent ratings assigned reasonably describe the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular evaluations are adequate and no referral is required. The evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the Rating Schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the Veteran's peripheral vascular disease of the lower extremities, status post stent placement in the left lower extremity, outside the usual rating criteria. The rating criteria specifically contemplates the Veteran's symptoms of diminished pedal pulses, as well as other typical occlusive disease symptoms such as claudication. As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. There is no indication in the medical evidence of record that a compensable disability rating for the Veteran's peripheral vascular disease of the lower extremities, status post stent placement in the left lower extremity, is warranted at anytime throughout the appeal period. As such, assignment of staged ratings is not warranted. Fenderson, 12 Vet. App. at 126. In reaching the above-stated conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to a compensable initial evaluation for peripheral vascular disease of the lower extremities, status post stent placement in the left lower extremity, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial evaluation of 10 percent, but no more, for left hip disability, status post labral tear and arthroscopy, is granted, subject to the laws and regulations governing the payment of monetary benefits. A separate 10 percent evaluation for limitation of extension, left hip disability, status post labral tear and arthroscopy, subject to the laws and regulations governing the payment of monetary benefits. A compensable initial evaluation for peripheral vascular disease of the lower extremities, status post stent placement in the left lower extremity, is denied. REMAND The Veteran is seeking an increased evaluation for his degenerative disc disease of the lumbosacral spine, status post decompression and fusion, both prior to and since October 28, 2011. Remand is required for compliance with VA's duty to assist the Veteran in substantiating the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service-connected degenerative disc disease of the lumbosacral spine, status post decompression and fusion, is currently evaluated under the criteria of Diagnostic Code 5243, used in rating intervertebral disc syndrome. Diagnostic Code 5243 provides for rating under the General Rating Formula for Diseases and Injuries of the Spine ("General Rating Formula") or rating under the Formula for Rating Intervertebral Disc Syndrome based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). Under the General Rating Formula, a 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating requires thoracolumbar spine forward flexion greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or for favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2013). Moreover, the General Rating Formula provides that this evaluation scheme is applied with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area of the spine affected by residuals of injury or disease. Id. Associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a , General Rating Formula, Note (1). Under the Formula for Rating Intervertebral Disc Syndrome based on Incapacitating Episodes, a 10 percent disability evaluation is contemplated for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. A July 2009 private treatment report noted electromyogram findings of chronic radicular pain in the left leg following the L5 nerve root distribution. In October 2011, a VA examination of the spine was conducted. The examination report noted that the Veteran exhibited signs or symptoms of radiculopathy. Specifically, the VA examiner noted findings of constant mild pain and intermittent moderate pain in the left lower extremity, involving the L4/L5/S1/S2/S3 nerve roots (sciatic nerve). The Veteran is seeking an increased initial evaluation for his service-connected degenerative disc disease of the lumbosacral spine, status post decompression and fusion. This determination requires consideration of whether any neurological abnormalities related to his lumbar spine disability warrants the assignment of a separate evaluation. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1) (2013); compare Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). Given the passage of time, the RO must also obtain the Veteran's updated treatment records, and afford the Veteran an updated VA examination to determine the current severity of his degenerative disc disease of the lumbosacral spine, status post decompression and fusion. This examination must be conducted by an examiner that has reviewed the Veteran's claims file, and the examination report must address all aspects of the Veteran's disability, including orthopedic and neurological components. Thereafter, the RO must readjudicate the issues on appeal, with consideration as to whether a separate disability evaluation is warranted for any neurological abnormalities related to his lumbar spine disability. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims, to include all VA and non-VA medical providers who have treated him for his degenerative disc disease of the lumbosacral spine, status post decompression and fusion, since December 2009. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Thereafter, the Veteran must be afforded the appropriate VA examination to determine the severity of his service-connected degenerative disc disease of the lumbosacral spine, status post decompression and fusion. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must specify the dates encompassed by the electronic records that were reviewed. All pertinent symptomatology and findings should be reported in detail. All indicated testing must be conducted, including a thorough neurological examination. The examiner must state whether there is any evidence of favorable or unfavorable ankylosis of the spine, and determine the active range of motion of the Veteran's lumbar spine, in degrees, by use of a goniometer noting by comparison the normal range of motion of the lumbar spine. If pain on motion of the lumbar spine is shown, the examiner must state at what degree the pain begins. The examiner must also state whether there is weakened movement, excess fatigability, or incoordination attributable to the service-connected lumbar spine disability, expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. Additionally, an opinion must be stated as to whether any pain found in the lumbar spine could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. The examiner must specifically note the Veteran's present symptoms and complaints including any reported incapacitating episodes (doctor-prescribed bedrest) and their durations; hospitalizations, surgeries, or interference with employment and/or activities of daily living; findings of intervertebral disc syndrome; any findings of muscle spasm, guarding, localized tenderness, abnormal gait, abnormal spine contour, such as scoliosis, reversed lordosis, or abnormal kyphosis, and vertebral body fracture with loss of 50 percent or more of height A thorough neurologic examination of the Veteran's low back must be conducted. All pertinent symptomatology and findings must be reported in detail. The examiner must specifically state whether any neurologic manifestations found are caused by the Veteran's service-connected low back disability. The examiner must also specifically state whether any neurologic manifestation found results in complete or incomplete paralysis of any nerve. The specific nerves involved must be identified. If incomplete paralysis is found, the examiner must state whether the incomplete paralysis is best characterized as mild, moderate, or severe; with the provision that wholly sensory involvement should be characterized as mild, or at most, moderate. The examiner must also state whether the Veteran has intervertebral disc syndrome; if so, the examiner must state whether the Veteran experiences incapacitating episodes and the frequency and total duration of such episodes over the course of the past 12 months. The report of examination must include a complete rationale for all opinions expressed. If the examiner cannot provide a requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. The report prepared must be typed. 3. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 4. After completing the above, and any other development as may be indicated, re-adjudicate the issues remaining on appeal, including consideration of whether any associated objective neurologic abnormalities relating to the Veteran's lumbar spine disability warrant assignment of a separate disability rating. If any issue remains denied, provide the Veteran and his representative with a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs