Citation Nr: 1418322 Decision Date: 04/24/14 Archive Date: 05/02/14 DOCKET NO. 10-36 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an initial increased rating in excess of 10 percent for a low back disability. 2. Entitlement to an initial separate rating in excess of 20 percent for right lower extremity radiculopathy. 3. Entitlement to an initial separate rating in excess of 10 percent for left lower extremity radiculopathy. 4. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Acosta, Associate Counsel INTRODUCTION The Veteran had active service from June 1984 to July 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2009 rating decision of the North Little Rock, Arkansas, Regional Office (RO) of the Department of Veterans Affairs (VA). During the course of this appeal, a December 2011 rating decision granted service connection for right and left lower extremity radiculopathy and assigned 20 and 10 percent ratings for these disabilities, respectively. The Board considers these matters to be part and parcel of the Veteran's original increased rating claim for the low back and has therefore added them as additional issues for current appellate review. In September 2010, before certification to the Board, the Veteran withdrew his appeals for entitlement to service connection for a right shoulder condition, a left should condition, a left hip condition, and a right hip condition. Thus, the Board will not discuss these matters. In February 2012, the Veteran presented sworn testimony during a Travel Board hearing in North Little Rock, Arkansas, which was presided over by the undersigned Acting Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. The Board notes that the North Little Rock, Arkansas RO obtained additional evidence in the form of VA treatment records. The Board acknowledges that no waiver of initial RO review accompanied this new evidence. However, the Board is remanding both appeals. Thus, the Board reasons that a solicitation of a wavier would only further delay the disposition of the appeals. The Board has reviewed the Veteran's electronic record prior to rendering a decision in this case. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeals for an increased rating in excess of 10 percent for his lower back disability and TDIU. The Veteran's October 2011 VA examination was inadequate, and a new examination is required. The Veteran testified in February 2012 that he has frequent flare-ups of his back pain which limit his activities. The Veteran further testified that he suffers from muscle spasms in his back which is supported by his October 2010 and August 2010 VA treatment records which document muscle spasms. The VA examination incorrectly stated there was no muscle spasms, and the Veteran did not have flare ups that impact his lower back disability. Thus, the VA examination is inadequate on at least two grounds. First, the United States Court of Appeals for Veterans Claims (Court) has held that an opinion based upon an inaccurate factual premise has no probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The fact that the Veteran's record contained evidence of muscle spasms which the VA examiner omitted in the October 2011 VA examination renders the VA examination inadequate. Second, the Court has held that 38 C.F.R. § 4.40 requires a VA examiner to address whether pain could significantly limit functional ability during flare-ups. Deluca v. Brown, 8 Vet App. 202, 206 (1995). While the Veteran testified that he has had consistent flare-ups that limit his activities, the VA examiner noted the Veteran does not have flare-ups that impact the function of his back disability without explanation. Thus, the Board finds that the VA examination provided was inadequate, and thus, a new examination is warranted. See Barr v. Nicholson, 21 Vet App. 303, 311 (2007) (once VA undertakes the effort to provide an examination, it must obtain a fully adequate one). As the examination may lead to additional relevant evidence as to the remaining claims on appeal, a decision as to those claims will be deferred pending the completion of the action directed in this remand. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all non-VA health care providers who have treated him for his low back disability. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. 2. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA health care providers who have treated him for his low back disability, other than the VA treatment he received between August 2010 and August 2013 from the Central Arkansas Veterans Healthcare System, which is already of record. If the AOJ cannot obtain any additional records identified, a notation to that effect should be included in the file, and the Veteran is to be notified of unsuccessful efforts in this regard. 3. Thereafter, schedule the Veteran for VA examination(s) to determine the current nature and severity of the Veteran's low back disorder, to include his right and left lower extremity radiculopathy. The Veteran's claims folder (including a copy of this remand) must be provided to and reviewed by the VA examiner as part of the examination, and a notation to the effect that this review has taken place should be made in the evaluation report. All studies and tests should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. The examiner is asked to comment on the VA treatment notes from August 2010 and October 2010 which indicate muscle spasms, and the Veteran's testimony in February 2012 that he has repeated flare-ups which limit his activity. After taking a detailed history from the Veteran regarding his low back disability and bilateral lower extremity radiculopathy, and considering the pertinent information in the record in its entirety, the VA examiner should comment on the severity of these disabilities and discuss the effect of these disabilities on his occupational functioning and daily activities. If the examiner determines that any opinion cannot be provided without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted regarding the etiology of any diagnosed disorder or whether additional testing or information could be obtained that would lead to a conclusive opinion. The AOJ should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained. 4. After completing the requested actions and any additional notification and/or development deemed warranted, readjudicate the issues of entitlement to an increase rating in excess of 10 percent for a low back disability, a rating in excess of 20 percent for right lower extremity radiculopathy, a rating in excess of 10 percent for left lower extremity radiculopathy, and entitlement to TDIU. If the benefits sought on appeal are not granted, the Veteran and his representative must be furnished a supplemental statement of the case and afforded the appropriate time period for response. The Veteran 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 or by the Court 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). _________________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).