Citation Nr: 1415044 Decision Date: 04/07/14 Archive Date: 04/15/14 DOCKET NO. 11-25 643 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUES 1. Entitlement to a rating in excess of 10 percent for a low back disability. 2. Entitlement to a rating in excess of 10 percent for a right shoulder disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G.R. Waddington, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to August 1990. This matter is before the Board of Veteran's Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. The Veteran testified before the undersigned at a February 2012 video-conference hearing. A transcript of the hearing is included in the claims file. The Virtual VA electronic system does not contain additional documents pertinent to the present appeal. 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 claims that his service-connected low back disability and right shoulder disorder have worsened since his June 2010 VA examination. An updated medical opinion is required. As part of the remand, the RO should obtain any outstanding VA treatment records dating from July 2011 forward and associate them with the claims file. The case is REMANDED for the following actions: 1. Request that the Veteran identify and secure any outstanding medical evidence that is related to his claim and that is not included in the claims file. In particular, advise the Veteran to obtain a statement from: a. Dr. O.S. that provides a basis or bases for his opinion that the Veteran's low back disorder pre-existed his February 2010 work-related accident (February 2010 fall) and would have worsened despite the accident; and b. Dr. McC. that summarizes the status of the Veteran's current right shoulder disorder and the need for shoulder surgery. For records that VA is responsible for locating and that are unavailable, document their unavailability within the claims file and advise the Veteran so that he can submit any copies in his possession. 2. Obtain any outstanding VA treatment records dating from July 2011 forward and associate them with the claims file. 3. Schedule the Veteran for a new low back and right shoulder examination with an opinion. The claims file and a copy of this remand must be made available to the VA examiner, who must note its review. The following considerations must govern the opinion: a. The examiner must conduct a complete low-back examination and provide a comprehensive assessment of the severity of the symptoms associated with the Veteran's low back disability. The assessment must: Provide the Veteran's range of motion of his cervical, thoracolumbar, or entire spine expressed in degrees. Repetitive motion testing should be conducted and the examiner should note any decrease of range of motion (in degrees) after repetitive use. Determine whether the low back exhibits weakened movement, excess fatigability with use, incoordination, painful motion, and/or pain with use and express any additional limitation of motion in terms of additional degrees of motion lost. State whether there is any ankylosis of the thoracolumbar spine or if the Veteran experienced any incapacitating episodes related to intervertebral disc syndrome expressed in days and/or weeks. b. The VA examiner must conduct a complete right-shoulder examination and provide a comprehensive assessment of the severity of the symptoms associated with the Veteran's right shoulder disability. The assessment must: Provide the Veteran's range of motion of the right shoulder, expressed in degrees. Repetitive motion testing should be conducted and the examiner should note any decrease of range of motion (in degrees) after repetitive use. Determine whether the right shoulder exhibits weakened movement, excess fatigability with use, incoordination, painful motion, and/or pain with use and express any additional limitation of motion in terms of additional degrees of motion lost. State whether there is any ankylosis or impairment of the humerus, clavicle, or scapula of the right shoulder. c. The VA examiner must opine as to the etiology of the Veteran's worsening low back and right shoulder symptoms. The examiner's opinion must address: Whether the Veteran's low-back disorder was exacerbated by the February 2010 fall or became progressively worse after his initial 10 percent rating in July 2010. Whether the Veteran's right-shoulder disorder was exacerbated by the February 2010 fall or became progressively worse after his initial 10 percent rating in July 2010. If the examiner finds that the Veteran's right shoulder disorder became exacerbated, he or she must specify whether the exacerbation resulted directly from the fall or from the Veteran's use of a walker immediately after he fractured his pelvis. d. The examiner has an independent responsibility to review the entire record for pertinent evidence. IN ADDITION TO ANY RECORDS THAT ARE GENERATED AS A RESULT OF THIS REMAND, the examiner's attention is called to: January 2004 VA treatment records (VATRs), noting low back pain radiating down the right side and tenderness along the Veteran's sacroiliac joint. December 2004 VTRs, noting chronic, episodic, and recurring back pain. May 2009, June 2009, and August 2009 private medical records (PMRs), noting that the Veteran has had radiating back pain for several years, that the back pain was exacerbation after a work-related accident (prior to the February 2010 fall), and a return to pre-accident pain levels. September 2009 VATRs, noting that the Veteran's back pain is exacerbated by the fact that he stands at work for long periods. October 2009 and December 2009 VATRs, noting degenerative changes at L5-S1, ruling out lumbar disk disease, and noting chronic back pain. February 2010 PMRs noting: that the Veteran fell 10 feet in a work-related accident, landed on his back, experienced immediate pain in his low back, and did not appear to injure his right shoulder; a pelvic fracture, degenerative changes at L5-S1, and "[n]o additional evidence of acute traumatic injury"; and no fracture or dislocation of the thoracic spine. February 2010 emergency medical services report. March 2010 VATRs, documenting the use of a walker after the February 2010 fall. March 2010 PMRs, noting mild to moderate degenerative changes affecting C6-C7 and tenderness along the Veteran's lower back. April 2010 VATRs, noting a pelvic bone fracture, degenerative changes in the lumbar spine without acute trauma, and no thoracic or cervical spine dislocation. April 2010 PMRs, noting that the Veteran has: "been having pain starting at the right buttock with radiation down posterior thigh the past week or so"; severe degenerative disc disease and mild bilateral neural foraminal narrowing in his low back; experienced back pain for over twenty years; and returned to work despite ongoing back pain that radiates down his right and left sides. May 2010 VATRs, noting degenerative changes in right shoulder but no rotator cuff tear or effusion. May 2010 PMRs, documenting bilateral neuroforaminal narrowing at L2-L5, osteoarthritis of the spine and right shoulder, cervical and low back injuries related to the February 2010 fall, bilateral shoulder impingement syndrome, a normal MRI of the right shoulder, and back problems prior to the February 2010 fall. June 2010 VA examination, noting: that the Veteran's back pain reportedly became worse after the February 2010 fall and that his right shoulder pain was exacerbated by the use of a walker after his pelvic fracture; the Veteran's daily and occupational activities; and a possible subchondral cystic change and degenerative changes in the right shoulder. June 2010 PMRs, noting that the fall exacerbated the Veteran's back symptoms, which currently include right-leg pain and a reduced range of spinal motion. August 2010 PMRs, noting "[l]ow back pain with right sided radiculopathy following the-job injury of 2/11/10" and long-standing history of low back pain with left leg radiculopathy. September 2010 PMRs, noting that the Veteran hurt his right shoulder in the February 2010 fall, a negative straight-leg raising test, and a limited spinal range of motion on. October 2010 PMRs, noting lumbar radiculopathy at L5 and possibly S1 and degenerative disc disease associated with bilateral foraminal stenosis. November 2010 and December 2010 PMRs, recommending back surgery and noting Workforce Safety and Insurance (WSI) approval for surgery. January 2011 PMRs, noting that the Veteran's degenerative disc disease and bilateral foraminal stenosis at L5-S necessitated back surgery. April 2011 statement, reporting that: the February 2010 fall "caused numerous injuries"; diagnostic images subsequent to the accident showed a worsening back disability; the Veteran returned to work on a part-time basis between September 2010 and January 2011; WSI agreed to the Veteran's January 2011 back surgery; and the back surgery required three months convalescence. June and July 2011 PMRs, noting that the February 2010 fall reinjured the Veteran's right shoulder and resulted in increasing shoulder pain as well as degenerative changes and some irritation of the tendons or tendonitis in the rotator cuffs of both shoulders. February 2012 hearing testimony, stating that the Veteran's low-back disability and right-shoulder disorder have worsened and that this worsening is not due to the February 2010 fall. April 2012 letter by Dr. O.S., stating that the Veteran's low back disability pre-dated the February 2010 fall and would have worsened "[e]ven if there was no fall." e. The examiner must provide a complete explanation of his or her opinion as to the cause of the worsening of the Veteran's low back disability and right shoulder disorder. The opinion must be based on the examiner's clinical experience, medical expertise, and established medical principles. f. If the examiner is unable to provide an opinion without resorting to speculation, he or she must state the reasons why such an opinion cannot be rendered. The examiner should address whether a definitive opinion cannot be provided because required information is missing (in which case the examiner should specify what information is missing) or because current medical knowledge yields multiple possible etiologies with none more likely than not the cause of the claimed disability. The examiner should be as specific as possible. 4. Then, review the VA examination report to ensure that it adequately responds to the above directives, including providing an adequate explanation in support of the requested opinion. If the report is deficient in this regard, return the case to the VA examiner for further review and discussion. 5. After the above development, and any other development that may be warranted based on additional information or evidence received, is completed, readjudicate the issues of entitlement to a rating in excess of 10 percent for a service-connected low back disability and for a service-connected right shoulder disorder. The RO/AMC's attention is called to 38 C.F.R. § 3.708(b)(1) (2013); M21-1MR, Part III, Subpart v, Chapter 4, Section D, Paragraph 18(bb). If the benefits sought are not granted, furnish the Veteran and his representative with a Supplemental Statement of the Case (SSOC) and afford the Veteran and his representative a reasonable opportunity to respond to the SSOC before returning the record 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. 2013). _________________________________________________ Vito A. Clementi 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).