Citation Nr: 1339696 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 11-07 330 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an initial evaluation for mechanical low back strain, degenerative disc disease in excess of 10 percent prior to November 11, 2009, and in excess of 20 percent thereafter. REPRESENTATION Veteran represented by: John S. Berry, Esq. ATTORNEY FOR THE BOARD L. Pelican, Associate Counsel INTRODUCTION The Veteran served honorably in the United States Army from October 1985 to November 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which granted service connection for mechanical low back strain, degenerative disc disease and assigned an initial rating of 10 percent, effective March 5, 2004, and a rating of 20 percent disabling, effective November 11, 2009. 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, in Washington, DC. VA will notify the Veteran if further action is required. REMAND The Veteran was afforded a VA examination in February 2012. The examiner noted the Veteran's diagnosis of mechanical low back strain and degenerative disc disease, but later in the examination report indicated that the Veteran did not have Intervertebral Disc Syndrome (IVDS). As a result, the examiner failed to inquire whether the Veteran had experienced any incapacitating episodes within the past twelve months as a result of the disability. Whether the Veteran has IVDS is relevant to rating his disability because a claimant with IVDS may potentially receive an increased rating for a disability of the lumbar spine based on incapacitating episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Therefore, the examination was inadequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.). Thus, all outstanding VA and private treatment records relating to the Veteran's back disability should be obtained and made part of the record. Then the Veteran should be scheduled for a new VA examination of his spine. If possible, the examination should be scheduled during a flare-up of the Veteran's back disability. The examination should include any indicated tests, and any accompanying opinion should be supported by a rationale. Accordingly, the case is REMANDED for the following actions: 1. Obtain all outstanding VA treatment and evaluation records dated for the entire period on appeal to present. In particular, all records and reports relating to the Veteran's back disability should be obtained. All records received should be associated with the claims file. 2. After obtaining the necessary authorization from the Veteran, request copies of any outstanding treatment records from any other treatment provider identified by the Veteran. If VA is unable to obtain such records, the Veteran should be accorded the opportunity to furnish such records directly to VA. All records received should be associated with the claims file. 3. When the above actions have been accomplished, to the extent possible, schedule the Veteran for an examination of his spine. If possible, the examination should be scheduled during a flare-up of the Veteran's back disability. The examiner should review the Veteran's claims file in conjunction with the examination. Any indicated studies or diagnostic tests should be performed. The examiner should report the range of motion in degrees and comment on the presence and extent of any painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. The examiner should report if there is evidence of ankylosis. The examiner should note all neurologic abnormalities and diagnoses, and indicate whether any diagnosed neurologic condition or conditions are related to the Veteran's service-connected back disability. The examiner should describe the level of severity of any identified neurological symptoms and describe any limitation caused by them. The examiner should also determine whether the Veteran has IVDS based on his diagnosis of degenerative disc disease (DDD). If the Veteran is found to have IVDS, the examiner should note the frequency and duration of incapacitating episodes (if any) due to IVDS. 4. Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the Veteran's claim. If the claim remains denied, the Veteran should be provided with a Supplemental Statement of the Case and an opportunity to respond. The case should then be returned to the Board for appropriate 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). (CONTINUED ON NEXT PAGE) 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). _________________________________________________ Bethany L. Buck 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).