Citation Nr: 1501493 Decision Date: 01/13/15 Archive Date: 01/20/15 DOCKET NO. 10-23 523 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to a rating in excess of 40 percent for lumbar strain. 2. Entitlement to a rating in excess of 20 percent for left leg paresthesias. REPRESENTATION Appellant represented by: Allan T. Fenley, Attorney at Law ATTORNEY FOR THE BOARD M. Young, Counsel INTRODUCTION The Veteran served on active duty from March 1998 to March 2002 and from January 2003 to March 2005. These matters are before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision of the New York, New York Department of Veterans Affairs (VA) Regional Office (RO) that continued a 40 percent rating for lumbar strain and a 20 percent rating for left leg paresthesias, and denied service connection for posttraumatic stress disorder (PTSD) due to sexual trauma. An interim (November 2014) rating decision granted service connection for PTSD and assigned a 30 percent rating effective July 21, 2008. As this represents a complete grant of the Veteran's claim of entitlement to service connection for PTSD, the issue is no longer on appeal before the Board. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that proper adjudication of this matter based on the record, as it currently stands, is not possible and that additional development of the evidentiary record is necessary. In June 2008 the Veteran filed claims for a rating in excess of 40 percent for his service-connected lumbar strain, and for a rating in excess of 20 percent for his service-connected left leg paresthesias. In July 2008 he underwent VA spine and peripheral nerves examinations. The July 2008 VA spine examination reveals MRI [magnetic resonance imaging] findings (November 2006) of mild degenerative changes at L4-L5. There was no history of bowel or bladder impairment noted. It was noted that he used a wheeled walker, without evidence of use for steadiness and/or off-loading. He was diagnosed with lumbosacral strain. On July 2008 VA peripheral nerves examination, there was no report of numbness and weakness of the left leg. The diagnosis was lumbar sacral pain; paralysis of the sciatic nerve was associated with the diagnosis. VA treatment reports subsequent to the July 2008 VA examination indicate the Veteran's service-connected low back and left leg disabilities have become worse. In September 2009 he was seen in a VA medical center emergency department with complaints of left leg numbness, both swollen legs/feet, and low back pain. He reported that he could not bear any weight to the left leg. He was discharged with a diagnosis of exacerbation of chronic low back pain. A February 2010 VA treatment (neurosurgery) report notes the Veteran presented with complaints of numbness and weakness of the left lower extremity with back pain and an inability to control his bowels. He also noted having bladder problems. As the Veteran is entitled to a new VA examination where there is evidence that his disability has worsened since the last examination, the Board must remand this matter to afford him an opportunity to undergo a VA examination to assess the current nature, extent, and severity of his service-connected lumbar spine disability (and any associated objective neurologic abnormalities) as well as his service-connected left leg disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran was entitled to a new examination after a two year period between the last VA examination and the Veteran's contention that his disability had increased in severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an `examination too remote for rating purposes cannot be considered "contemporaneous"); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his service-connected lumbar strain and left leg paresthesias disabilities. The Veteran's entire record must be reviewed by the examiner in conjunction with the examination. Any indicated tests or studies, such as x-rays, range of motion measurements, and neurological testing, should be completed. All examination findings should be reported to allow for application of pertinent VA rating criteria. 2. Thereafter, the RO should re-adjudicate the claims, to include consideration of separate evaluations for any additional identified neurological disabilities related to the Veteran's service-connected lumbar spine disability. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board. 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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) (2014).