Citation Nr: 1336148 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-20 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a disability rating in excess of 10 percent prior to February 5, 2011, and in excess of 20 percent from February 5, 2011, for lumbar intervertebral disc protrusion at L4-L5 with degenerative disc disease. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran served on active duty from August 1996 to January 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2009 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Winston-Salem, North Carolina. The Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing) in July 2012. A transcript of that hearing has been associated with the claims file. This case was remanded by the Board in February 2013. For the reasons explained below, it is again necessary to return this case to the RO for further development. This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the July 2012 Travel Board hearing, the Veteran testified that his lumbar spine symptoms included radiating pain into the legs, problems with movement, problems with bowel movement, symptoms warranting prescribed bed rest, and problems with his job. He also testified that since his last VA examination, his range of motion has decreased. Thus, the Board remanded this case in February 2013 and requested that the Veteran undergo a VA examination in order to determine the current severity of his service-connected low back disability. In March 2013, the Veteran underwent a VA examination. However, the Board finds that this examination is inadequate for numerous reasons. First, the examiner stated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. However, throughout this appeal, the Veteran has consistently maintained that he had radiculopathy down both lower extremities. In addition, he has been diagnosed with radiculopathy. VA Medical Center (VAMC) outpatient treatment records show that in May 2009, he was diagnosed with lumbar degenerative disc disease with radiculopathy. In addition, private medical records show that in February 2012, he was diagnosed with right lower back pain with radiation, sciatica. Thus, clearly he has been diagnosed with radiculopathy and this needs to be addressed. In addition, the examiner stated that the Veteran did not have any bowel problems. However, the Veteran has specifically maintained that due to his low back disability, he has problems with his bowel movements. The examiner also indicated that there was no x-ray documentation of arthritis of the lumbar spine when, in fact, there is x-ray documentation of lumbar spine arthritis. Moreover, the examiner reported that the Veteran did not have intervertebral disc syndrome, including any incapacitating episodes of intervertebral disc syndrome. However, the Veteran has been diagnosed with intervertebral disc syndrome and has documented incapacitating episodes. In this regard, in a letter from the Veteran, dated in April 2013, he stated that he had been prescribed bed rest on four separate occasions: from February 22, 2012 to February 28, 2012 (6 days), from March 29, 2012 to April 1, 2012 (4 days), from September 12, 2012 to September 17, 2012 (6 days), and from November 7, 2012 to November 21, 2012 (14 days). With respect to the Veteran's March 2012 period of bed rest, the Veteran stated that he sought treatment at the Durham VAMC emergency room in March 2012 and was seen by S.L., ANP during that visit. According to the Veteran, she prescribed bed rest from March 29, 2012 to April 1, 2012. VAMC outpatient treatment records show that on March 29, 2012, the Veteran was seen by S.L. at the Durham VAMC for low back pain with radiculopathy. However, while it appears she provided the Veteran information about vocational rehabilitation, there is no evidence showing that she prescribed bed rest. Nevertheless, he was prescribed bed rest on other occasions. Private medical records show that on February 22, 2012, the Veteran was diagnosed with right lower back pain with radiation/ sciatica, and was told to take Prednisone for 6 days and then Voltaren for 7 to 10 days. It was reported that the Veteran would be out of work for 4 days to rest and recuperate. In addition, in a VA medical statement, dated on September 12, 2012, G.K., a VA physician's assistant (PA), noted that prolonged standing was aggravating the Veteran's lumbar radiculitis. He further reported that the Veteran needed to be relieved from working as an operating room technician for 3 days to allow for some resolution. Moreover, in another statement from G.K., dated on November 7, 2012, he stated that it was his recommendation that the Veteran stay off work for the next two weeks to allow resolution of flare-up of his lumbar disc problems. Thus, in light of the above, the Veteran has clearly experienced incapacitating episodes and these need to be addressed. Lastly, the examiner from the March 2013 VA examination stated that the Veteran's service-connected low back disability did not have any impact on his ability to work. However, the Veteran has repeatedly maintained that his low back disability interfered with his ability to work. He indicated that he worked as a surgical technician which involved prolonged standing, and that the prolonged standing aggravated his low back disability. In support of his contention, he submitted a statement from T.C., RN, Nurse Manager at the Federal Medical Center, dated in April 2013. In the statement, Ms. C. stated that on multiple occasions during the past year, the Veteran had been relieved of his duty as a surgical technician and left work early to receive care and treatment for his lower back pain from his primary care physician. In light of the above, because the March 2013 VA examination is inadequate, it is the Board's determination that the RO has not complied with the instructions from the February 2013 remand. The Board observes that it is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Appeals for Veterans' Claims (Court). The Court has stated that compliance by the Board and the RO with remand directives is neither optional nor discretionary. Where the remand of the Board or the Court is not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's VA and private treatment records, dated since February 2013. 2. Thereafter, schedule the Veteran for a VA orthopedic/neurological examination to determine the current severity of his lumbar spine disability. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The examination report is to contain a notation that the examiner reviewed the claims file. The evaluation of the Veteran's lumbar spine should consist of all necessary testing. The examiner is asked to comment on the following: (a) Please specify the range of motion findings of the Veteran's thoracolumbar spine and the range of motion findings upon repetitive testing. If applicable, please specify: (i) the degree(s) at which pain begins, if any; (ii) any additional limitation of function upon repetitive testing; and (iii) any degree of additional limitation of motion upon repetitive testing. (b) Have there been any periods of incapacitating episodes in the past year, in which a physician has prescribed bed rest? If so, how often? Please identify the total duration of any incapacitating episodes in the past year. The examiner MUST SPECIFICALLY acknowledge the incapacitating episodes that have already been documented in the record which consist of the February 2012 episode of bed rest for 4 days; the September 2012 episode of bed rest for 3 days; and the November 2012 episode of bed rest for 2 weeks. (c) Are there any neurological manifestations of the lumbar spine disability, including radiculopathy of any extremity or bladder/bowel symptoms? If so, please identify. In this regard, the examiner MUST SPECIFICALLY acknowledge that the Veteran has already been diagnosed with radiculopathy. With respect to his diagnosed radiculopathy, the examiner MUST determine which nerve groups are involved with the radiculopathy, and characterize the overall neurological impairment in each lower extremity as mild, moderate, moderately severe, or severe. The examiner MUST also address the Veteran's complaints of bowel problems. (d) Please discuss the affect of the disability on the Veteran's employment and activities of daily living. The examiner MUST address the Veteran's specific contentions that his low back disability interferes with his ability to perform his job as a surgical technician. A complete explanation should be provided for any opinion expressed, and the foundation for all conclusions should be set forth. The report of the examination should be associated with the claims file. 3. Next, review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. In particular, determine whether the examiner has responded to all questions posed. If not, the report must be returned for corrective action. 38 C.F.R. § 4.2 (2013). 4. Finally, review and re-adjudicate the issue on appeal. Consideration should be given to the assignment of separate ratings for associated neurological abnormalities, to include radiculopathy of the right and/or left lower extremity, if found. See Esteban v. Brown, 6 Vet. App. 259 (1994). If such action does not grant the benefit claimed, provide the Veteran and his representative an SSOC and an appropriate period of time must be allowed for response. Thereafter, the case must be returned to this Board for appellate review Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. 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). _________________________________________________ P.M. DILORENZO 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).