Citation Nr: 1342869 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 11-31 473 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an increased rating for chronic discopathy and lumbar strain, currently evaluated as 40 percent disabling. 2. Entitlement to an initial increased rating for left sciatic nerve neuropathy, currently evaluated as 20 percent disabling. 3. Entitlement to an initial rating for right sciatica, currently evaluated as 10 percent disabling. ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1994 to September 1994, and July 1995 to May 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which confirmed a longstanding 20 percent rating for lumbar strain. The Veteran then filed a notice of disagreement in May 2010. A November 2011 rating decision assigned a 40 percent rating from May 26, 2010, and recategorized the disability as chronic discopathy with lumbar strain. That rating decision also assigned a separate rating for left sciatic nerve neuropathy, assigning a 0 percent rating from June 26, 2009, a 10 percent rating from July 13, 2009, to May 25, 2010, and a 20 percent rating beginning May 26, 2010. A separate rating was also assigned for right sciatica, assigning a 0 percent rating from June 26, 2009, and 10 percent for the period beginning July 13, 2009. The Veteran then appealed that decision when his perfected his appeal in his November 2011 VA Form 9. 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 Board finds that further development is necessary in order to determine the appropriate disability ratings of the Veteran. The November 2011 rating decision increased the Veteran's rating to 40 percent based upon May 2010 records from his chiropractor. Those records did not comment on the frequency or severity of incapacitating episodes. The RO granted secondary service connection for left sciatic nerve neuropathy and right sciatica based upon the records from his chiropractor. These records date from three and a half years ago, and the Veteran has never had a VA examination to specifically determine the current severity of these two disabilities. The Veteran's August 2009 VA examination was only intended to evaluate the current severity of his low back disability. Therefore, the Board finds that remand is necessary in order to more fully evaluate the current level of disability for both ailments. See Allday v. Brown, 7 Vet. App. 517, 526 (1995) (VA must provide a contemporaneous medical examination where the record does not adequately reveal the current state of the claimant's disability, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). Accordingly, the case is REMANDED for the following action: 1. Request the Veteran to identify any outstanding records with regards to treatment for his service-connected low back and bilateral lower extremity disabilities, and to complete the necessary form (VA Form 21-4142) for VA to obtain any non-VA records. After obtaining the necessary authorizations, request copies of any outstanding records. All requests for the above-described records and all responses, including negative responses, must be documented in the claims file. All records received should be associated with the claims file. If any records cannot be obtained after appropriate efforts have been expended, the Veteran should be notified and allowed an opportunity to provide such records. 2. Once the above development has been completed, the Veteran should be afforded a VA examination with a qualified examiner to determine the current severity of his service-connected lumbar spine and bilateral lower extremity disabilities. The examiner should review the claims folder, a copy of this remand, and any evidence in Virtual VA. All indicated testing should be conducted. The examiner should report the range of motion of the lumbar spine in degrees. The examiner should report whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the disability. If pain on motion is observed, the examiner should indicate the point at which pain begins. Furthermore, any additional loss of motion or function (decreased or abnormal excursion, strength, speed, coordination, or endurance) with repetitive movement must be noted. The examiner must inquire as to periods of flare-up and note the frequency and duration of any such flare-ups. The examiner must equate all functional losses due to pain, incoordination, fatigue, weakness, and flare-ups, etc., to additional loss of motion (beyond what was shown on clinical examination). The examiner should report any specific information as to the frequency and duration of incapacitating episodes over 12 month periods. The examiner should report all neurologic impairment resulting from the service-connected lumbar spine and bilateral lower extremity disabilities. The examiner should also opine as to the severity of that impairment, in terms of mild, moderate, or severe. If there is neurologic impairment of the lower extremities that is not related to the service connected back or lower extremity disabilities, the examiner should so report. 3. After completion of all requested and necessary development, the RO should review the record in light of the new evidence obtained. If any benefit for which there is a perfected appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case. Once they are afforded an opportunity to respond, the claim should be returned to the Board for appellate review. No action is required of the Veteran until he is notified by the RO/AMC; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim. 38 C.F.R. § 3.655. 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. 2012). _________________________________________________ THOMAS J. DANNAHER 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) (2012).