Citation Nr: 1509893 Decision Date: 03/10/15 Archive Date: 03/17/15 DOCKET NO. 12-33 736 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for service-connected degenerative disc disease of the lumbar spine with lumbosacral strain (hereinafter low back condition). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant, Son & Friend ATTORNEY FOR THE BOARD C. Boyd, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2002 to June 2002 and from November 2008 to November 2009. This matter comes before the Board of Veterans' Appeals (Board) from a March 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska. In September 2013, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the proceeding is associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Reason for Remand: To schedule the Veteran for a VA examination to ascertain the current severity of her service-connected low back condition. In a March 2011 rating decision, the RO granted service connection for a low back condition and assigned a 10 percent initial rating effective October 13, 2010, the date of the Veteran's claim. In assigning a 10 percent rating, the RO relied on a September 2010 VA examination report. The Veteran described subjective symptoms of stiffness, spasms and decreased motion, although range of motion was noted to be within normal limits. The RO awarded a 10 percent evaluation based on tenderness of the spine. In her November 2012 Form 9, the Veteran indicated her belief that her VA examination had been inadequate and that range of motion testing had not, in fact, been performed. The Veteran explained in her Form 9 and at her hearing before the Board that the examiner had her sit on a table and turn her head from side to side. She explained that he did not actually measure flexion, extension and rotation of her spine. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine and ratings rely on the range of motion measurements. As such, the Veteran's lay testimony regarding the lack of range of motion testing at the September 2010 examination indicates the examination was at least in part inadequate. As such, remand is necessary. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide an examination, it must be adequate). Additionally, the current level of disability is most important in claims for an increased rating. Where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Here, the most recent examination of the Veteran's spine was over four years ago. Although age of an examination is not, in itself, an automatic reason for remand, a current examination is necessary in determining the overall disability picture. In addition, the Veteran has provided evidence that her condition has worsened since September 2010. For the foregoing reasons, the Board will remand the claim for a new examination. The Board also notes several statements in support of claim dated as recently as 2013 indicating that the Veteran's low back condition is affecting her ability to work. Since entitlement to a total disability rating based on individual unemployability (TDIU) is part and parcel of an increased rating claim, the VA examiner should consider these statements and provide an opinion as to what impact the Veteran's back disability has on her ability to work. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Lastly, it appears the most recent treatment records in the paper claims file and the electronic claims file are dated in 2011. On remand, all available VA treatment records must be associated with the claims file for review. Accordingly, the case is REMANDED for the following action: 1. Associate all outstanding VA treatment records with the claims file. 2. Schedule the Veteran for a VA examination with an appropriate specialist to assess the current nature and severity of her service-connected low back condition. The claims file, to include the files on VBMS and VVA, should be made available for review and the examination report should reflect that such review occurred. The examiner should perform range of motion testing administered with a goniometer. Along with actual measurement of range of motion, the examiner should indicate whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in additional functional loss. The examiner should note the presence of favorable ankylosis, unfavorable ankylosis and/or incapacitating episodes. The examiner should specifically indicate the presence of any other associated objective neurologic abnormalities, to include bowel or bladder impairment. All objective and subjective symptoms should be reported in detail. Finally, the examiner should provide an opinion as to the functional limitations the Veteran experiences as a result of her low back condition and what impact, if any, those have on her occupational functioning. 3. To help avoid future remand, ensure that all requested actions have been accomplished 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). 4. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefit sought is not granted to the fullest extent, the Veteran and her representative should be furnished a supplemental statement of the case (SSOC) 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 2014). _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).