Citation Nr: 1337077 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 07-13 610 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for radiculopathy in the lower extremities secondary to a service-connected low back disability. 2. Entitlement to an evaluation in excess of 40 percent for a lumbar spine disability. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active Marine Corps service from January 1970 to October 1971. This case arises to the Board of Veterans' Appeals (Board) from February 2005 and July 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO). In pertinent part of those rating decisions, the RO denied a claim for a higher evaluation for a lumbar spine disability and denied service connection for a bilateral sciatic nerve disorder. Entitlement to TDIU has been raised by the record and has been added to page 1 to reflect the Board's jurisdiction. Rice v. Shinseki, 22 Vet. App. 447 (2009). The case was previously remanded by the Board in February 2011. The 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 February 2011, the Board remanded the case for a fresh VA neurologic/orthopedic compensation examination to determine the current severity of the Veteran's low back disability and to determine the nature and etiology of his claimed lower extremity radiculopathy symptoms. The examination was accomplished in April 2011. Quite recently, in September 2013, the Veteran submitted directly to the Board additional new evidence. The evidence is an August 2013 private magnetic resonance imaging study (MRI) of the lumbar spine. The MRI report indicates that the lumbar spine disability has materially worsened since the April 2011 VA examination. The physician reported that the L 4-5 disc is "much larger than noted previously and the degree of central canal narrowing is increased." The physician concluded, "The degenerative disc disease has increased, particularly at L4-L5, as discussed above." Whether a medical examination is "contemporaneous" depends on the circumstances of the case. See Snuffer v. Gober, 10 Vet App. 400 (1997), and Caffrey v Brown, 6 Vet App 377, 381 (1994). In Caffrey, the United States Court of Appeals for Veterans Claims (hereinafter: the Court) held that where evidence indicated a material change in the disability or indicated that the current rating may be incorrect, a fresh medical examination was required. Because a material change in the disability since the April 2011 examination is strongly suggested by the recent MRI report, the Board must remand this case for another examination. Moreover, inasmuch as the Veteran did not waive his right to initial RO review of the recent MRI report, the RO or AMC will have an opportunity to review the recent report prior to any further Board adjudication. The second reason for this remand is to obtain clarification of the April 2011 VA compensation examination report. See 38 C.F.R. § 4.2. The April 2011 examination report is ambiguous with respect to a key issue. The Board had asked the examiner to determine whether the Veteran has any lower extremity radiculopathy. After examining the Veteran, the examiner replied: Impression: It is my impression the Veteran has: 1. transitional lumbar spine with rudimentary disc at L5-S1 2. facet arthropathy of the lower lumbar spine 3. bilateral lower extremity radiculopathy While this impression is certainly clear enough for a lay adjudicator to understand, the April 2011 examiner then recited a recent electromyography study and stated, "Therefore, it is my opinion the Veteran does NOT have radiculopathy of the lower extremities." The examination report must be returned to the April 2011 examiner for clarification. The examiner is asked to clarify whether the Veteran has lower extremity radiculopathy. If that answer is "no," the examiner is asked to address the etiology of the Veteran's claimed lower extremity neurologic symptoms. Accordingly, the case is REMANDED for the following action: 1. The AMC or RO should obtain any outstanding records of pertinent VA or private treatment and associate any records received with the claims files. 2. The April 2011 VA compensation examination report must be returned to the examiner for clarification. The examiner is asked to clarify whether the Veteran had or has lower extremity radiculopathy. If that answer is "no," the examiner is asked to address the etiology of the Veteran's claimed lower extremity neurologic symptoms. If the examiner is unable to answer any question without another examination, because the Board is ordering a fresh examination for other reasons, the questions posed in this paragraph may be deferred to the next compensation examiner. 3. The AMC or RO should schedule an appropriate examination to determine the current severity of the Veteran's lower back disability. The examiner should review the pertinent medical history, elicit a history of pertinent symptoms from the Veteran, and then examine him. All necessary tests and studies should be conducted. All clinical findings should be reported. The examiner must evaluate the severity of the Veteran's back disability, address the pain-free range of motion of the thoracolumbar spine, and consider functional loss due to weakened movement, excess fatigability, incoordination, or pain on repetitive motion. The examiner should indicate whether ankylosis of the spine is shown. The examiner should address whether the Veteran is experiencing a flare-up of pain at the time of the examination. If the Veteran is not experiencing a flare-up, the examiner should indicate whether it is possible to determine the additional loss of function during a flare-up of pain. The examiner should determine whether the Veteran has had any incapacitating episodes of intervertebral disc syndrome. If, so, the examiner is asked to report the frequency and duration of such episodes. The examiner or examiners should determine whether the Veteran has any neurological condition secondary to his service-connected back disability, such as radiculopathy of the lower extremities. The VA examiner should address whether it is at least as likely as not (i.e., 50 percent or greater probability) that any neurological condition, including radiculopathy, is related to the service-connected lumbar spine disability. If so, the examiner must then fully describe the symptoms and severity of any such disorder found. Finally, the examiner should address the extent to which the service-related disabilities impact the Veteran's ability to secure and follow a substantially gainful occupation. The examiners should set forth all pertinent findings, along with a rationale or underlying reasoning for any conclusion. 4. After accomplishing the above, the AMC or RO should perform any additional development deemed necessary. Then, the AMC or RO should re-adjudicate the claims, taking into consideration all of the evidence, including recently received evidence. If any benefit sought remains denied, the Veteran and his representative must be furnished a Supplemental Statement of the Case and given an opportunity to respond before this case is returned to the Board. 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). Failure to report for a scheduled VA examination, without good cause, may have adverse consequences on these claims. 38 C.F.R. § 3.655. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). _________________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).