Citation Nr: 1337810 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 10-48 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Whether a 40 percent schedular rating for low back strain with referred pain in the left lower extremity was properly reduced to 10 percent, effective March 1, 2010. 2. Entitlement to an increased rating for low back strain, currently evaluated at 10 percent disabling. REPRESENTATION Veteran represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from February 1971 to February 1973. This matter came to the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In a December 2009 rating decision, the RO reduced the Veteran's schedular rating for low back strain with referred pain in the left lower extremity from 40 percent to 10 percent, effective March 1, 2010. In a July 2010 rating decision, the RO denied entitlement to an increased rating for low back strain with referred pain in the left lower extremity. These matters were remanded in July 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 Initially, the Board notes that the claims folder contains VA outpatient treatment records dated from January 8, 2008 to June 24, 2008, and the electronic claims file (Virtual VA) contains VA outpatient treatment records dated from December 22, 2009 to December 20, 2011. Outstanding treatment records dated from June 25, 2008 to December 21, 2009 must be associated with the claims folder or Virtual VA. Also, updated treatment records should be associated with the claims folder or Virtual VA dated from December 21, 2011. Bell v. Derwinski, 2 Vet. App. 611 (1992). In August 2011, the Veteran underwent a VA examination to assess the severity of his low back disability. His active flexion was recorded as 0 to 20 degrees and there was objective evidence of pain on active range of motion. The examiner commented, however, that the ranges of motion demonstrated during formal active range of motion testing were limited by the degree of motion which induced pain and the Veteran was unwilling to move through pain. The examiner also commented that there may be some degree of symptom magnification, as spontaneous motion without objective pain demonstrated by the Veteran exceeded the range of motion demonstrated during testing. Finally, the examiner commented that the range of motion recorded at an April 2010 physical therapy evaluation was significantly greater than that demonstrated at the VA examination. Such findings frustrate a determination of the appropriate rating under the diagnostic criteria, thus the Board finds that the Veteran should be afforded another VA examination to assess his range of motion of the thoracolumbar spine. Also, a history of fatigue; decreased motion; stiffness; weakness; spasm; and, spine pain was indicated, and the examiner noted decreased mobility; problems with lifting and carrying; difficulty reaching; lack of stamina; weakness or fatigue; decreased strength; and, pain. The examiner, however, did not comment on whether range of motion is additionally limited by any of these functional limitations. The examination should address these factors. Finally, the Veteran complained of a sensation of numbness and occasional disthesias in the entire lower limb to the feet. On sensory examination, findings included dysesthesias affecting the L5 and S1 nerves in the right and left lower extremities and tingling and numbness in the legs to feet. While there was no objective evidence of sensory or motor radiculopathy, in light of the dysesthesias detected in the lower extremities, further neurological evaluation should be completed on examination. Accordingly, the case is REMANDED for the following actions: 1. Associate with the claims folder or Virtual VA treatment records for the period June 25, 2008 to December 21, 2009, and for the period from December 21, 2011. 2. Afford the Veteran an examination to determine the severity of his lumbar spine disability and any associated lower extremity radiculopathy. It is imperative that the claims file be made available to and reviewed by the examiner in connection with the examination. The examination of the spine should include range of motion studies. The examiner must report whether there is any additional limitation of motion due to weakened movement, excess fatigability, incoordination, pain or flare-ups. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report any specific information as to the frequency and duration of physician prescribed bedrest in the past 12 months. The examiner should fully describe the extent and severity of any neurological symptoms, to include whether he has radiculopathy or sciatica of the lower extremities. If radiculopathy or sciatica of the lower extremities is shown, the examiner should identify the specific nerve(s) involved, to include whether there is incomplete or complete paralysis, and offer an opinion as to the degree of impairment of the nerve (that is, whether it is mild, moderate, moderately severe, or severe in nature). The examiner should also identify any muscular atrophy. The examiner should opine whether the Veteran's service connected low back strain with referred pain in the left lower extremity precludes gainful employment for which his education and occupational experience would otherwise qualify him. The examiner must provide reasons for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 3. In the interest of avoiding future remand, the AMC/RO should then review the opinion and/or examination report to ensure that the above questions have been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies. 4. After completion of the above, review the expanded record and readjudicate the issues in appellate status. If any of the benefits sought are not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran and his representative have 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). _________________________________________________ ERIC S. LEBOFF 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).