Citation Nr: 1342303 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 04-23 068 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to a disability evaluation in excess of 40 percent for lumbosacral strain. 2. Entitlement to an evaluation in excess of 60 percent for urinary incontinence. 3. Entitlement to an evaluation in excess of 30 percent for bowel incontinence. 4. Entitlement to an evaluation in excess of 40 percent for radiculopathy, sciatic and femoral nerves, of the left lower extremity. 5. Entitlement to an evaluation in excess of 20 percent for radiculopathy, sciatic nerve, of the right lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant, his wife and his daughter ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1968. This matter comes to the Board of Veterans' Appeals (Board) from May 2001 and December 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran testified before a now-retired Veterans Law Judge (VLJ) in June 2010. He also testified before the undersigned VLJ at a hearing in September 2013. Transcripts of those hearings have been associated with the claims file. In May 2012 the issue of entitlement to a disability evaluation in excess of 40 percent for lumbosacral strain was last before the Board, at which time it was remanded for further development. In the aforementioned December 2012 rating decision, the RO effectuated grants of service connection for urinary incontinence, bowel incontinence, radiculopathy, sciatic and femoral nerves, of the left lower extremity, and radiculopathy, sciatic nerve, of the right lower extremity. Because these conditions are neurological manifestations related to the service-connected lumbosacral strain, it is appropriate for the Board to assert jurisdiction over these claims. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (1). The issues of entitlement to special monthly compensation based on the need for regular aid and attendance or being housebound and entitlement to an evaluation in excess of 50 percent for mood disorder with depressive features have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ 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 was last afforded a VA examination in July 2012. At the September 2013 Board hearing, the Veteran testified that his low back condition had worsened since then. When it is indicated that the severity of a service-connected disability has increased since the most recent rating examination, an additional examination is appropriate. See Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Nonetheless, the Board is not required to remand an appealed disability benefit claim solely because of the passage of time since an otherwise adequate examination report was prepared. VAOPGCPREC 11-95 (April 7, 1995). As the Veteran's complaints indicate possible worsening of the service-connected disability, he should be afforded a new VA examination to address the severity of this condition. Also, the Board notes that the Veteran receives fairly regular VA medical treatment. A review of the claims file, to include the Virtual VA paperless claims system, shows that the most recent VA records associated therewith are dated June 27, 2012. Thus, up-to-date treatment records should be obtained on remand. See 38 U.S.C.A. § 5103A(c) (West 2002) & Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain any VA medical records not currently associated with the claims file and associate them therewith, particularly any records dated after approximately June 27, 2012. 2. After the development directed in paragraph 1 has been completed to the extent possible, schedule the Veteran for an appropriate VA examination, to include a complete physical examination, in order to determine the current severity of his service-connected lumbosacral strain, urinary incontinence, bowel incontinence, radiculopathy, sciatic and femoral nerves, of the left lower extremity, and for radiculopathy, sciatic nerve, of the right lower extremity. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The complete claims folder must be provided to the examiner for review in conjunction with the examination. The examination report should specifically state the degree of disability present in the low back and his current range of motion in this spinal segment, the presence or absence of unfavorable or favorable ankylosis, as well as identify any objective evidence of pain. Any neurological abnormalities, to include erectile dysfunction, bladder and bowel impairment and lower extremity symptoms, e.g. paresthesias, weakness, etc., resulting from the service-connected low back disability should be discussed. The clinician should also discuss how the Veteran's disability impacts his daily activities of living. The extent of any weakened movement and excess fatigability on use should be described. To the extent possible, the functional impairment due to weakened movement and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion. Range of motion studies should be conducted, if possible, using a goniometer and the use thereof should be noted in the examination report. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 3. Then, after conducting any additional indicated development, readjudicate the claims currently on appeal. If any benefit sought on appeal remains denied, issue a Supplemental Statement of the Case and provide the appellant and his representative an appropriate period of time to respond before this case is returned to the Board. (CONTINUED ON NEXT PAGE) The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ 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).