Citation Nr: 1340387 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 12-20 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for a lumbar spine disability. 2. Entitlement to an initial compensable evaluation for right lower extremity radiculopathy associated with the lumbar spine disability prior to July 17, 2012, and in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD M. Peters, Associate Counsel INTRODUCTION The Veteran had active duty service from September 1957 to March 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for a lumbar spine disability and assigned a 20 percent disability evaluation, effective September 1, 2010-the date on which he filed his claim for service connection. The Veteran timely appealed that disability evaluation. During the pendency of the appeal, the Veteran filed a claim of service connection for right lower extremity radiculopathy, which was received on July 17, 2012; a separate 10 percent evaluation for that disability was assigned in an August 2012 rating decision. In light of the relevant regulations regarding evaluation of lumbar spine disabilities, which note that neurological disorders should be evaluated separately, the Board has taken jurisdiction over the right lower extremity radiculopathy evaluation claim on appeal in order to more appropriately and adequately evaluate the Veteran's disability picture. The Veteran and his spouse testified at a Board hearing before the undersigned in February 2013; a transcript of that hearing is associated with the claims file. 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 In his February 2013 hearing, the Veteran indicated that his last VA examination was in November 2010, and that since that examination his symptomatology has worsened. In light of these statements, the Board finds that a remand for a new VA examination is necessary at this time. See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). The Board additionally notes that the Veteran testified that he had as recently sought treatment with VA for his lumbar spine disability two weeks prior to his February 2013 hearing. Review of the claims file demonstrates that the most recent VA treatment records in the claims file date from August 2010. Thus, a remand is also necessary in order to obtain any outstanding VA treatment records. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Obtain any relevant VA treatment records from the Fargo VA Medical Center, or any other VA medical facility that may have treated the Veteran, since August 2010 and associate those documents with the claims file. 2. Ask the Veteran to identify any private treatment that he may have had for his lumbar spine and associated right lower extremity radiculopathy disabilities, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. 3. Schedule the Veteran for VA orthopedic and neurologic examinations in order to determine the current severity of his lumbar spine disability. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. The VA examiner should conduct range-of-motion testing and provide commentary regarding symptoms, including painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups. Furthermore, any additional loss of motion with repetitive movement must be noted. The examiner should inquire as to periods of flare-up, and note the frequency and duration of any flare-ups. The examiner must estimate the effect of all functional losses, including due to flare-ups, by equating the disability experienced due to such losses to additional loss of motion (stated in degrees) beyond what is shown clinically. The examiner is also directed to specifically comment on the following: (a) Whether there are muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. (b) Whether there is any ankylosis, either favorable or unfavorable, of the Veteran's lumbar spine. (c) Whether the Veteran has intervertebral disc syndrome of the lumbar spine, and if so, identify the number of incapacitating episodes involving physician-prescribed bed rest, if any, within a 12-month period. (d) The examiner must also identify any associated neurological abnormalities associated with the service-connected lumbar spine disorder, to include any associated bladder or bowel impairment, and particularly the presence of any radiculopathy, particularly of the right lower extremity. The nerves affected should be identified and impairment of each described as mild, moderate, moderately severe, or severe in nature, and whether such represents symptomatology that more closely approximates incomplete or complete paralysis of the affected nerves. The examiner should also state whether the Veteran's lumbar spine disability and any associated neurological disabilities preclude him from obtaining and maintaining substantially gainful employment. All opinions must be accompanied by an explanation. If the examiner opines that any of the above questions cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Following any additional indicated development, the RO/AMC should review the claims file and readjudicate the Veteran's claims for increased evaluation of his lumbar spine and associated right lower extremity radiculopathy disabilities. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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). _________________________________________________ Thomas H. O'Shay Acting 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).