Citation Nr: 1339213 Decision Date: 11/27/13 Archive Date: 12/13/13 DOCKET NO. 10-11 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine. 2. Entitlement to a disability rating in excess of 10 percent for lumbar radiculopathy of the left lower extremity. 3. Entitlement to a disability rating in excess of 10 percent for lumbar radiculopathy of the right lower extremity. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1979 to November 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which continued a 40 percent evaluation for degenerative disc disease (DDD), L4-5. In December 2011, the Veteran presented sworn testimony during a Travel Board hearing in St. Petersburg, Florida, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. In a December 2012 decision, the Board denied an evaluation in excess of 40 percent for DDD of the lumbar spine and granted separate evaluations of 10 percent effective June 10, 2008 for lumbar radiculopathy of the left lower extremity, 10 percent effective June 10, 2008 for lumbar radiculopathy of the right lower extremity, 10 percent effective September 25, 2006 for fecal incontinence, and 40 percent effective December 22, 2009 for urinary incontinence. The Veteran appealed the Board's evaluations for DDD of the lumbar spine and lumbar radiculopathies of the left and right lower extremities to the United States Court of Appeals for Veterans Claims (Court). She expressly withdrew her appeals for the evaluations assigned for fecal and urinary incontinence. In July 2013, the Court issued an order issued an order granting a June 2013 joint motion for remand (JMR). The appeal was returned to the Board for action consistent with the June 2013 JMR and July 2013 Court Order. The appeal included a denial of service connection for an acquired psychiatric disorder, which was Remanded in July 2011. In a July 2013 rating decision, the Appeals Management Center (AMC) granted service connection for a mood disorder with depressive features and panic disorder. This grant of service connection is considered to be a full grant of the benefits on appeal for the Veteran's psychiatric disorder claim. The claim of entitlement to service connection for a psychiatric disability is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 115 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The appeal is REMANDED to the RO via the AMC in Washington, DC. VA will notify the Veteran if further action on her part is required. REMAND The June 2013 JMR indicated that VA failed to obtain all necessary VA treatment records. Specifically, the parties identified the Veteran's hearing testimony wherein she reported receiving treatment for her low back disability at the VA Palm Harbor Community-Based Outpatient Clinic (CBOC) every three months. The parties then observed that the most VA treatment records associated with the claims file at the time of the Board's decision were more than three months old, which suggested that the Veteran had been seen for her back disorder in the interim period. The parties agreed that up-to-date records were needed. Additional VA treatment records have been associated with the Veteran's electronic claims file since the December 2012 decision. Records from June 2011 to July 2013 are on file and reflect that the Veteran receives routine evaluations for pain management. However, as indicated, the most recent VA treatment record associated with the claims file is dated in June 2013 - over four months ago. Based on her report of treatment or evaluations every three months, which appears to occur, the JMR ostensibly directed the Board to remand the case for updated VA treatment records any time there is a gap of more than three months to insure that VA had "all VA treatment records relating to Appellant's back". Thus, as it has been more than three months since the most recently obtained VA treatment record, the case must be remanded to obtain any new VA treatment records. It remains unclear as to whether any additional VA treatment records will affect the Veteran's claim. However, the Board is bound by the JMR and Court Order. Next, although not expressly required in the JMR, the Board notes that it has been 4 years since the Veteran's most recent VA examination and that she has complained that her low back disability is continually worsening. A new VA examination is thereby appropriate on remand. See Green v. Derwinski, 1 Vet. App. 121 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Further, as the JMR noted some concern with the evaluations of the Veteran's bilateral lower extremity radiculopathies based on the last VA examination, the examiner should specifically address the extent of any nerve paralysis. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records from the Palm Harbor VA CBOC and any other VA facilities identified by the Veteran. All attempts to obtain these records should be documented in the claims file. 2. Thereafter, the Veteran should be scheduled for a VA examination in order to determine the current nature and severity of her low back disability and associated radiculopathies. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. All indicated studies and testing, including range of motion testing, should be completed. The examiner should specifically indicate whether there is unfavorable ankylosis of the entire thoracolumbar spine. A finding should also be made as to whether the Veteran experiences incapacitating episodes of intervertebral disc syndrome and the frequency of those occurrences. With respect to her bilateral lower extremity radiculopathy, the examiner should state whether the Veteran experiences mild incomplete, moderate incomplete, moderately severe incomplete, severe incomplete, or complete paralysis of the sciatic nerve. Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. After completing the above actions, the AMC/AOJ should review the record and insure that the most recent VA treatment records are added to the claims. 4. Then, the Veteran's claims of entitlement to increased ratings for her low back disability with associated bilateral lower extremity radiculopathies should be readjudicated. This should be performed as expeditiously as possible to avoid the potential lapse of three months and adding of treatment records related to the spine and lower extremities. If any of the claims remain denied, a supplemental statement of the case should be provided to the Veteran and her representative. After they have had an adequate opportunity to respond, all issue(s) properly on appeal should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of her claims. Her cooperation in VA's efforts to develop her claims, including reporting for any scheduled VA examination, is both critical and appreciated. She is also advised that failure to report for any scheduled examination may result in the rating of the claim on the evidence of record if it is an original claim or denial if it is a claim to reopen or for increase. 38 C.F.R. § 3.655(b) (2013). These claims 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. 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2013). _________________________________________________ MICHAEL A. HERMAN 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) (2013).