Citation Nr: 1338945 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 13-00 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to a rating in excess of 20 percent for chronic lumbar strain and degenerative disc disease. 2. Entitlement to service connection right hip degenerative joint disease, as secondary to chronic lumbar pain and degenerative disc disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1968 to May 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. A review of the documents in the Veteran's Virtual VA electronic claims file reveals VA treatment records relevant to the issues on appeal. The issues of entitlement to service connection for a gait disorder and insomnia, both as secondary to chronic lumbar strain and degenerative disc disease, were raised by the Veteran's representative in a May 2013 statement, but have not been adjudicated by the agency of original jurisdiction. Therefore, the Board does not have jurisdiction over them, and they are referred to the agency of original jurisdiction for appropriate action. 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 The Veteran contends that his service-connected for chronic lumbar strain and degenerative disc disease warrants a rating higher than 20 percent. The Veteran and his representative have asserted that the Veteran's condition has become worse since the November 2012 examination. The Veteran's VA treatment records also indicate that he has reported a worsening of his back pain since the November 2012 VA examination. In November 2012, the Veteran's VA treating physician noted that he had worsening lower back pain which was musculoskeletal in origin and with lumbar radiculopathy. To ensure that the evidence of record reflects the current severity of the Veteran's service-connected lumbar disability and includes a fully adequate opinion and rationale in order to decide the claim, a new and contemporaneous examination is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (Once VA undertakes the effort to provide an examination when developing a service-connection claim, even if not statutorily obligated to do so, it must provide an adequate one.); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (VA is obligated to provide a new examination when a veteran asserts that the service-connected condition has become more severe.). The RO/AMC should therefore arrange for the Veteran to undergo an additional VA lumbar spine examination. The Veteran is also claiming entitlement to service connection for right hip degenerative disc disease, as secondary to his service-connected chronic lumbar strain and degenerative disc disease. In November 2012 the Veteran was afforded a VA examination to determine the diagnosis and etiology of the Veteran's current right hip disability. The examiner diagnosed the Veteran with right hip degenerative disc disease, confirmed by X-ray, and opined that the disorder was less likely than not proximately due to or a result of his service-connected condition. The examiner did not, however, address whether the Veteran's hip disability has been aggravated by his service-connected lumbar strain. Service connection may be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2013). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a veteran may be compensated for the degree of disability over and above that existing prior to the aggravation. Id. The Veteran's representative also indicated in a May 2013 Informal Hearing Presentation that the examiner failed to address whether the Veteran's previously documented gait disorder could be caused by his service-connected lumbar spine disability and could cause or aggravate his right hip disability. Accordingly, in order to obtain an adequate opinion regarding the etiology and aggravation of the Veteran's claimed right hip disability, the RO/AMC should also arrange for the Veteran to undergo an additional VA hip examination. See Barr, 21 Vet. App. at 311. Finally, the Veteran's VA treatment records show that he has been regularly treated for spine and hip disorders at the VA Eastern Kansas Health Care System in Leavenworth, Kansas. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The record currently contains the Veteran's VA treatment records dated up to November 2012. As these records may provide evidence probative to determining the current severity of the Veteran's lumbar spine disorder, including any evidence of periods of incapacitation during the period on appeal, all relevant treatment records dated since November 2012 must be acquired and associated with the claims file. Accordingly, the case is REMANDED for the following action: 1. The AOJ should consider whether at formal rating decision is required since the lumbar disability has been reclassified to include degenerative disc disease. The last rating decision is limited to lumbar back strain. 2. Obtain all outstanding, pertinent records of medical evaluation and treatment of the VA Eastern Kansas Health Care System in Leavenworth, Kansas since November 2012. All records received should be associated with the claims file. If the RO/AMC cannot locate any Federal records requested herein, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO/AMC must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given an opportunity to respond. 3. Thereafter the RO/AMC should schedule the Veteran for a VA lumbar spine examination to determine the current severity of the Veteran's service-connected chronic lumbardisability. The claims folder, to include Virtual VA, must be provided to the examiner. All indicated tests should be accomplished, and all clinical findings reported in detail. The examiner should conduct range of motion testing of the low back, expressed in degrees. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with chronic lumbar strain and degenerative disc disease. If pain on motion is observed, the examiners must indicate the point at which pain begins. The examiner should also determine whether the Veteran has an altered gait and discuss any documented reports of altered gait in his medical records. In addition, the examiner must indicate whether, and to what extent, the Veteran experiences functional loss due to his lumbar strain and degenerative disc disease. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should determine whether there have been incapacitating episodes. The examiner is advised that the term "incapacitating episodes" is defined as a period of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1 (2013). The examiner must set forth all examination findings, together with the complete rationale for the comments and opinions expressed. 4. The RO/AMC should also schedule the Veteran for a VA hip examination to determine the current diagnosis and etiology of any right hip disorder. A complete and well reasoned rationale must be provided for any and all opinions offered. All indicated tests should be accomplished, and all clinical findings reported in detail. The examiner is asked to address the following questions: (a) What is the current diagnosis pertaining to the claimed right hip disorder? (b) Is it at least as likely as not (i.e., a 50 percent or greater probability) that any currently diagnosed hip disorder had its clinical onset during service or otherwise is related to an injury or other event of the Veteran's period of active service? (c) Is it at least as likely as not (i.e., a 50 percent or greater probability) that any currently diagnosed hip disorder was caused or aggravated (permanently worsened beyond the natural progression) by the service-connected chronic back strain and degenerative disc disease? If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. Please include a discussion of any gait disorders or abnormalities found to be related to the Veteran's lumbar disability and whether alteration of gait has caused any aggravation of his right hip degenerative joint disease. The reasons and bases for all opinions expressed should be provided and the report should include a discussion of the Veteran's documented medical history, statements, and assertions. 5. The Veteran is to be notified that it is his responsibility to report for any examination and to cooperate in the development of the claim. The consequences for failure to report for any VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2013). 6. Thereafter, the RO/AMC should readjudicate the claims. If any benefit sought is not granted, the appellant and his representative must be furnished with a supplemental statement of the case and afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the 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. 2013). _________________________________________________ H. N. SCHWARTZ 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).