Citation Nr: 1338642 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 09-31 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for service-connected chronic lumbosacral strain. 2. Entitlement to service connection for an additional low back disability, over and above the service-connected lumbosacral strain, to include degenerative disc disease and herniated disc. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1999 to August 2002 and from October 2006 to February 2008. This matter comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The initial January 2009 rating decision granted service connection and assigned the Veteran a 10 percent rating for chronic lumbosacral strain, effective February 2008. Thereafter, an August 2010 rating decision increased the Veteran's initial rating to 20 percent, effective from February 2008. Regardless of the RO's actions, the issue remains before the Board because the increased rating was not a complete grant of the maximum benefits available. See AB v. Brown, 6 Vet. App. 35 (1993). The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. 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 Contained within the Veteran's March 2009 Notice of Disagreement and July 2009 Substantive Appeal is what must be construed as a notice of disagreement with respect to a the denial of a claim for service connection for an additional low back disability, over and above the service-connected lumbosacral strain, to include degenerative disc disease and herniated disc. When there has been an initial RO adjudication of a claim and a notice of disagreement has been filed as to its denial, the appellant is entitled to a statement of the case (SOC), and the RO's failure to issue a statement of the case is a procedural defect requiring remand. Manlincon v. West, 12 Vet. App. 238 (1999). The Board notes that the Veteran's current claim for an increased initial rating turns not only on the evaluation assigned to the service-connected lumbosacral strain, but also on whether the Veteran has degenerative disc disease that can be associated with service or his service-connected lumbosacral strain, which is the subject of the Veteran's claim for service connection for an additional low back disability. Upon consideration of the record, the Board finds that it would be to the best benefit of the Veteran to first adjudicate the clearly defined claim for service connection for an additional low back disability, over and above the service-connected lumbosacral strain, to include degenerative disc disease and herniated disc. In this regard, the Board notes that the service connection claim for degenerative disc disease is part and parcel of the claim for an increased initial rating, and as such these claims are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Notwithstanding those procedural actions, the Board believes that additional substantive development will be critical to arriving at a fair decision in this appeal. The Veteran underwent VA examinations in November 2008 and September 2009. In the Veteran's September 2009 examination, the examiner noted that the Veteran's lumbar spine had normal curvature, normal symmetry, no spasm, and was tender to palpation over the lumbosacral paraspinous muscles of the spine. The Veteran had lumbar flexion to 50 degrees with pain, extension to 10 degrees with pain, lateral flexion to the left and right 10 degrees, and rotation to 40 degrees. The September 2009 VA examiner also noted that the claims file had an MRI dated March 2008 that showed "mild broad-based disk bulge with superimposed shallow central paracentral disk protrusion with annular tear which contracts the transiting S1 nerve root bilateral left greater than right disk material also contacts the extraforaminal exiting L5 nerve root on the left." Although the examiner addressed the criteria needed for lumbosacral spine rating, he did not satisfactorily disassociate any degenerative disc disease from service. Therefore, another examination and opinion would be helpful to a better medical understanding of this appeal to include whether it is possible to differentiate between all symptoms and functional impairment due to the service connected lumbosacral strain from any impairment attributable to any currently non-service connected low back disability. 38 U.S.C.A. § 5103A(d) (2002). Accordingly, the case is REMANDED for the following actions: 1. Arrange for a physician skilled in the diagnosis and treatment of spine disabilities to examine the Veteran and provide an opinion, with a complete supporting rationale, as to the nature and etiology of any current low back disability. A report should be prepared and associated with the Veteran's VA claims folder. The examiner should indicate on the examination report that the claims folder was reviewed in conjunction with the examination. The examiner should specifically determine whether it is as likely as not (a 50 percent or greater probability) that any identified low back disability other than the service-connected lumbosacral strain, to specifically include degenerative disc disease and herniated disc, is etiologically related to any incident of the Veteran's military service, or to his service-connected lumbosacral strain by way of either causation or aggravation. If it is found that there is no such association, the examiner should also provide an opinion as to whether any diagnosed low back disability other than the service-connected lumbosacral strain can be satisfactorily disassociated from lumbosacral strain for rating purposes. In that regard, it is requested that the examiner provide explicit responses to the following questions: (a) Does the service-connected low back disability involve only lumbosacral sprain, or does it also involve other disabilities, to include degenerative disc disease? (b) If another low back disorder, to include degenerative disc disease and herniated disc was diagnosed, can it be satisfactorily disassociated from the Veteran's service connected lumbosacral strain, or are they part and parcel of that disability? All indicated studies of the lumbar spine, including range of motion studies in degrees, should be performed. The extent of any incoordination, weakened movement, and excess fatigability on use should be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use and during flare-ups, and, to the extent possible, provide an assessment of any additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should indicate whether the Veteran's low back disability results in incapacitating episodes (i.e., episodes in which his adverse symptomatology required bed rest ordered by a physician). If so, the examiner should comment on the duration and frequency of such incapacitating episodes. The examiner should comment on whether there is any neurological abnormality associated with the low back disability, to include but not limited to bladder or bowel impairment. If the severity of these manifestations cannot be quantified, the examiner must so indicate. If the functional impairment created by any non-service connected problem(s) cannot be dissociated, the examiner should so indicate. Any opinions expressed by the examiner must be accompanied by a complete rationale, and address the considerations contained within 38 C.F.R. §§ 4.40, 4.45, 4.59 (2013). If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2011). 2. Inasmuch as the issue of entitlement to an increased rating for lumbosacral strain is deemed to be inextricably intertwined with the issue of entitlement to service connection for any other low back disability, to include degenerative disc disease, issue a statement of the case to the Veteran and his representative, addressing the issue of entitlement to service connection for an additional low back disability, over and above the service-connected lumbosacral strain, to include degenerative disc disease and herniated disc. The Veteran and his representative must be advised of the time limit in which he may file a substantive appeal. 38 C.F.R. § 20.302(b) (2007). Then, only if the appeal is timely perfected, the issue should be returned to the Board for further appellate consideration, if otherwise in order. 3. Then readjudicate the Veteran's claims in light of any additional evidence obtained. If benefits are not granted to his satisfaction, send him and his representative a supplemental statement of the case and give them time to respond before the case is returned to the Board for further appellate consideration. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ MICHAEL A. PAPPAS 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).