Citation Nr: 1438275 Decision Date: 08/27/14 Archive Date: 09/03/14 DOCKET NO. 09-37 357A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to an increased rating in excess of 20 percent for degenerative arthritis of the thoracolumbar spine with intervertebral disc syndrome, status post implantation of spinal cord stimulator and IPO impulse generator. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD H. Papavizas, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to January 1968, and from April 1971 to April 1974. This appeal to the Board of Veterans' Appeals (Board) arose from a February 2009 rating decision, in which the RO, inter alia, assigned a 20 percent rating for the Veteran's service-connected degenerative arthritis of the thoracolumbar spine with intervertebral disc syndrome, status post implantation of spinal cord stimulator and IPO impulse generator (thoracolumbar spine disability). In June 2009, the Veteran filed a notice of disagreement (NOD) only as to the rating of his thoracolumbar spine disability. In October 2009, the RO issued a statement of the case (SOC), and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) later that same month. After the Veteran submitted additional evidence, in March 2014., the RO issued a supplemental SOC (SSOC) reflecting the continued denial of a higher rating. In April 2014, the Veteran and his wife testified during a Board hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. In addition to the paper claims file, the Veteran has paperless, electronic Virtual VA and Veteran Benefits Management System (VBMS) files. A review of the documents in Virtual VA and VBMS reveals that, with the exception of an April 2014 hearing transcript and VA treatment records dating to December 2013, they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. For reasons expressed below, the matter on appeal is being remanded to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran when further action, on his part, is required. REMAND The Board's review of the claims file reveals that further AOJ action in this appeal is warranted. Initially, the Board notes that the record includes very disparate findings pertaining to the extent of the Veteran's range of motion loss in his thoracolumbar spine. In a July 31, 2009 statement, Dr. J. S. Gabriel (who noted treating the Veteran since 2008) indicated that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine resulting from the neurological symptoms due to nerve root stretching. More recently, however, a January 2013 VA examiner recorded the Veteran's range of lumbar spine motion as forward flexion to 80 degrees, and right and left lateral flexion to 10 degrees, each. No finding or notation as to any current ankyloses was made, and the examiner did not comment on Dr. Gabriel's prior finding of unfavorable ankylosis. Additionally, the Veteran testified during the April 2014 hearing that his thoracolumbar spine disability had worsened since his January 2013 VA examination. See Hearing Transcript, p. 14, 16. Under these circumstances, the Board finds that the evidence of record is inadequate to fully evaluate the Veteran's service-connected lumbar spine disability, and that further examination of the Veteran-to obtain appropriate, contemporaneous findings responsive to the applicable rating criteria, and to attempt to resolve any discrepancies in the record as to the Veteran's range of motion loss-is needed to resolve the increased rating claim on appeal. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Hence, the AOJ should arrange for the Veteran to undergo VA spine examination, by an appropriate physician-preferably, a neurosurgeon or orthopedic spine surgeon-at a VA medical facility. The Veteran is hereby notified that failure to report to the scheduled examination, without good cause, may well result in denial of the claim for increase. See 38 C.F.R. § 3.655(b) (2013). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. If the Veteran fails to report to the scheduled examination, the AOJ should obtain and associate with the claims file any copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. Prior to arranging for the Veteran to undergo VA examination, to ensure all due process requirements are met, and record is complete, the AOJ should undertake appropriate action to obtain all outstanding, pertinent records. As for VA records, the claims file includes VA treatment records from the Audie L Murphy Memorial VA Medical Center (VAMC) dating to December 2013. More recent records may well exist. Hence, the AOJ should obtain from this facility all outstanding, pertinent records of treatment of the Veteran's thoracolumbar spine since December 2013, by following the current procedures prescribed in 38 C.F.R. § 3.159(c) as regards requests for records from Federal facilities. The AOJ should also give the Veteran another opportunity to present additional information and/or evidence pertinent to the claim remaining on appeal, explaining that he has a full one-year period for response. See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see 38 U.S.C.A. § 5103(b)(3) (West Supp. 2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period). The AOJ should specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private records related to treatment of his thoracolumbar spine that have not previously been submitted. I Thereafter, the AOJ should obtain any additional evidence for which the appellant provides sufficient information and, if necessary, authorization, following the procedures prescribed in 38 C.F.R. § 3.159 (2013). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). However, identification of specific actions requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the actions requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim remaining on appeal. Adjudication of the claim should include consideration of whether "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found), pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), is warranted. Accordingly, this matter is hereby REMANDED for the following action: 1. Obtain from the Audie L Murphy Memorial VA Medical Center (VAMC) all outstanding, pertinent records of evaluation and/or treatment of the Veteran's thoracolumbar spine, dated since December 2013. Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 2. Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization to obtain any additional evidence pertinent to the appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent, private records that have not previously been submitted. Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 3. If the Veteran responds, assist him in obtaining any additional evidence identified following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 4. After all records and/or responses received from each contacted entity have been associated with the claims file, also arrange for the Veteran to undergo VA spine examination by an appropriate physician-preferably, a neurosurgeon or orthopedic spine surgeon-at t a VA medical facility, for evaluation of his thoracolumbar spine disability. The contents of the entire claims file (paper and electronic), to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results made available to the requesting physician prior to the completion of his or her report), and all clinical findings should be reported in detail. The physician should identify all neurological impairment associated with the Veteran's thoracolumbar spine disability. For each identified neurological impairment, the examiner should indicate whether such impairment constitutes a separately ratable neurological manifestation of the Veteran's service-connected disability. If so, the examiner should assess the severity of each such manifestation as mild, moderate, moderately severe, or severe. The physician should conduct range of motion testing of the thoracolumbar spine (expressed in degrees). The physician should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the physician should indicate the point at which pain begins. In addition, the physician should indicate whether, and to what extent, the Veteran experiences likely functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the physician should express any such additional functional loss in terms of additional degrees of limited motion. The physician should also render a specific finding as to whether the Veteran has any actual (or, effective) ankylosis of the entire thoracolumbar spine; and, if so, whether such ankylosis is favorable or unfavorable. In doing so, the physician should consider and discuss the July2009 statement by Dr. J. S. Gabriel that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine resulting from neurological symptoms due to nerve root stretching Considering all orthopedic and neurological findings, the physician should also render findings particularly responsive to the criteria for rating intervertebral disc syndrome (IVDS)-specifically, comment as to the existence and frequency of any of the Veteran's incapacitating episodes (i.e., a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician). If the Veteran has incapacitating episodes associated with his lumbar spine disability, the examiner should specify whether, over the past 12 months, such episodes have had a total duration of (a) at least one week, but less than 2 weeks; (b) at least two weeks but less than 4 weeks; (c) at least 4 weeks but less than 6 weeks; or (d) at least 6 weeks. Further, based on review of the Veteran's documented medical history and assertions, the examiner should indicate whether, at any time since June 2007 (one year prior to the filing of the June 2008 claim for increase), the Veteran's service-connected thoracolumbar spine disability has changed in severity; and if so, the approximate date(s) of any such change(s), and the extent of severity of the disability at each stage. All examination findings, along with complete, clearly-stated rationale for the conclusions reached, must be provided. 5. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file any copy(ies) of the notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility. 6. To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. Stegall v. West, 11 Vet. App. 268 (1998). 7. After completing the requested actions, and any additional notification and/or development deemed warranted, adjudicate the claim on appeal. If the Veteran fails, without good cause, to report to the scheduled examination, in adjudicating the claim for increase, apply the provisions of 38 C.F.R. § 3.655(b), as appropriate. Otherwise, adjudicate the claim in light of all pertinent evidence (to particularly include all that added to the record since the last adjudication) and legal authority (to include consideration of whether staged rating, pursuant to Hart (cited above), is appropriate). 8. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental SOC that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefit requested should be granted or denied. The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). This REMAND must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ JACQUELINE E. MONROE 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 the appeal. 38 C.F.R. § 20.1100(b) (2013).