Citation Nr: 1521764 Decision Date: 05/21/15 Archive Date: 06/01/15 DOCKET NO. 13-12 170 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for degenerative joint disease of the lumbosacral spine. 2. Entitlement to an increased initial rating in excess of 10 percent for right L4 radiculopathy. 3. Entitlement to service connection for diabetes mellitus type II. 4. Entitlement to service connection for sleep apnea. REPRESENTATION Veteran represented by: James Fausone, Esq. ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1991 to November 1991, as well as from August 1992 to July 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied an increased rating for the Veteran's lumbosacral spine disability; as well as an April 2011 rating decision, which granted service connection at 10 percent for radiculopathy. A review of the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) was conducted. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran essentially contends that his service-connected lumbosacral spine and radiculopathy are more severe than contemplated by their current ratings. First, it appears that there may be outstanding records. VAMC treatment records from June 2009 noted the Veteran had been seeing a Dr. K.K. for the past four months. June 2011 records from Dr. K.K., note that the Veteran had been seen for 18 sessions. Therefore upon remand, any outstanding medical records, including those from Dr. K.K. during the appeal period, should be obtained. Next, a Veteran is entitled to a new examination where there is evidence that the condition may have worsened since the last examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Veteran argues that he has nerve pain that is regular and "stabbing," alternating with a "burning" pain and sensation, and which cannot be alleviated by shifting position, stretching, or taking medications; and therefore is worse than indicated in the last VA examination in December 2010. See April 2013 VA Form 9. While the passage of time alone does not require a remand, given that most recent examination was in December 2010 and the Veteran contends that both of his conditions have worsened, the Board finds that another examination is warranted to assess the current nature and severity of his service-connected lumbosacral spine disability and radiculopathy. Last, in a November 2013 rating decision, the RO denied service connection for diabetes type II and sleep apnea. In a statement received November 2014, the Veteran expressed disagreement with those denials. The RO has not yet issued a Statement of the Case (SOC) as to the issues of entitlement to service connection for diabetes and sleep apnea. As such, the RO is now required to send the Veteran an SOC as to this issue in accordance with 38 U.S.C.A. § 7105 (West 2014) and 38 C.F.R. §§ 19.29 , 19.30 (2014). In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that where a Notice of Disagreement has been submitted, the veteran is entitled to a Statement of the Case. The failure to issue a Statement of the Case is a procedural defect requiring a remand. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398 (1995). Accordingly, the case is REMANDED for the following actions: 1. With appropriate authorization, obtain any outstanding relevant VA and non-VA medical records including from Dr. K.K., and associate them with the claims folder or electronic record. 2. Schedule the Veteran for an examination in order to determine the current level of severity of his lumbosacral spine disability and right lower extremity radiculopathy. The examiner should review the electronic records on VBMS and Virtual VA for review. All indicated studies, including range of motion studies in degrees using a goniometer, should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. To the extent possible, the examiner should assess the degree of severity of any pain. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should also specifically report at what point any pain begins, and at what point any pain causes any functional impairment, or whether there is any additional range of motion loss due to excess fatigability, incoordination, or flare-ups. If such is not feasible, the examiner should explain why. The examiner should indicate whether the Veteran's lumbosacral disability results in incapacitating episodes (i.e., episodes in which her adverse symptomatology required bed rest ordered by a physician). If so, the examiner should comment on the duration and frequency of such incapacitating episodes. The examiner should comment on whether there is any neurological abnormality associated with lumbosacral disability, to include but not limited to the left lower extremity and bladder or bowel impairment. The examiner should also provide information concerning the severity of the service-connected right lower extremity radiculopathy. 3. Thereafter, ensure that the development above has been completed in accordance with the remand instructions; undertake any other development action that is deemed warranted; and, based on all of the evidence of record, including all evidence associated with the claims file pursuant to this remand, re-adjudicate the claims. If the benefits sought on appeal remain denied, the Veteran should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response before the case is returned to the Board. 4. Issue an SOC to the Veteran and his representative on the issues of service connection for diabetes mellitus and sleep apnea, required by 38 C.F.R. §§ 19.29-19.30 (2014) and Manlincon, 12 Vet. App. at 240. If, and only if, the appeal is perfected by a timely filed substantive appeal, this issue should be certified to the Board. 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 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). _________________________________________________ S.S. TOTH 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).