Citation Nr: 1400219 Decision Date: 01/06/14 Archive Date: 01/23/14 DOCKET NO. 10-35 401 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity. REPRESENTATION Appellant represented by: Karl A. Kazmierczak, Attorney ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from March 1974 to March 1994. The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Columbia, South Carolina. In that decision, the RO granted service connection for radiculopathy of the right lower extremity and assigned a 10 percent evaluation effective from August 15, 2008. The Board notes that the June 2010 statement of the case issued for this appeal also included a claim for entitlement to a higher rating for degenerative disc disease of the lumbar spine. However, in his August 2010 VA Form 9, the Veteran limited the appeal to claim listed on the title page. As such, the claim for degenerative disc disease of the lumbar spine is not in appellate status, and no further consideration is necessary. Additionally, the Board notes that the Veteran began pursuing claims for higher ratings for gout, a bilateral knee disorder, a bilateral foot disorder, and bilateral hearing loss. However, upon the issuance of a statement of the case in April 2011, a substantive appeal was never received, and the appeal was not perfected for these issues. Accordingly, the claims involving gout, a bilateral knee disorder, a bilateral foot disorder, and bilateral hearing loss are not currently on appeal. The Board has considered the electronic files included in the Virtual VA and VBMS systems in reaching the determinations below. No relevant records are contained in VBMS. Documents contained in Virtual VA that are not in the paperless claim file include VA medical records. However, as the appeal must be remanded for other action, the RO will have the opportunity to review the evidence and issue a Supplemental Statement of the Case. See 38 C.F.R. § 19.31 (2013). The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In July 2012, the Veteran's attorney submitted a notice letter from the Social Security Administration (SSA) indicating that the Veteran was awarded disability benefits. He also included a psychiatric report and general medical examination report that were used in the SSA determination. The general medical report does contain findings pertinent to the Veteran's radiculopathy of the right lower extremity. However, it is unclear if these are the complete records that SSA used in making its determination. It appears that the RO did make an attempt to request the complete SSA records, but there is no response documented in the claims file. Thus, on remand, the RO should make another attempt should be made to obtain the Veteran's complete SSA records. In addition, in February 2013, the Veteran's attorney requested that the Veteran's "symptoms of sciatica" be considered in rating the claim. A February 2012 VA treatment record indicates that the Veteran's sciatic pain was worsening and that he was having a hard time walking. See CAPRI Records, Entry #3, p.20/132. The Board notes that the Veteran was last afforded a VA examination in December 2011 in connection with his claims. Therefore, an additional examination should be provided in order to ascertain the current severity and manifestations of the Veteran's service-connected radiculopathy of the right lower extremity. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain a copy of any decision to grant or deny SSA benefits to the Veteran and the records upon which that decision was based and associate them with the claims file. If the search for such records has negative results, the claims file should be properly documented as to the unavailability of those records. 2. The Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected radiculopathy of the right lower extremity. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all manifestations of the Veteran's radiculopathy of the right lower extremity and report all signs and symptoms necessary for evaluating the disability under the rating criteria. In particular, the examiner should indicate whether the Veteran has incomplete paralysis that is mild, moderate, moderately severe, or severe with marked muscular atrophy. He or she should also state whether there is complete paralysis with the foot dangling and dropping, no active movement possible of the muscles below the knee, and flexion of the knee weakened or lost. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing these actions, the RO should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development has been completed, the case should be reviewed by the RO on the basis of additional evidence, including nay evidence contained in VBMS or Virtual VA. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ J.W. ZISSIMOS 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).