Citation Nr: 1530055 Decision Date: 07/14/15 Archive Date: 07/21/15 DOCKET NO. 09-27 040 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an increased evaluation for a lumbosacral strain, rated as 10 percent disabling from June 23, 2008 to April 29, 2011 and as 40 percent disabling from April 29, 2011. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The Veteran served on active duty from May 1980 to February 1987. This appeal arose before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA), Regional Office (RO), which denied an evaluation in excess of 10 percent for the service-connected lumbosacral strain. In a September 2011 rating decision, the RO increased the evaluation assigned to the lumbosacral strain to 40 percent, effective April 29, 2011. In February 2012, the Veteran testified before the undersigned at a personal hearing conducted at the RO. A transcript of this proceeding has been included in the claims folder. In June 2012, the Board remanded this case for additional evidentiary development. It has been returned to the Board for further appellate consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND While the Board regrets the additional delay, another remand is needed in this case to ensure a full and fair review of the Veteran's claim. As noted above, the Veteran's claim was remanded in June 2012, in part so that private treatment records referred to by the Veteran during his February 2012 hearing could be obtained. He had indicated that since approximately 2006 he had seen Dr. K.H. about every two months for the treatment of his low back. He had submitted an appropriate authorization form in May 2011 for VA to obtain these records; however, because this was not done, the Board remanded the case to request these records. In June 2012, the Veteran was sent correspondence noting that these records were necessary in order to make a decision in his case and another authorization form was enclosed. He did not respond to this correspondence. Despite this, since this case must be remanded for other reasons, it is determined that the Veteran should be given another opportunity to submit these records. See 38 C.F.R. § 3.159(e)(2) (2014). The Veteran is, however, reminded that the duty to assist is not always a one-way street. If he wishes help in substantiating his claim, he cannot simply passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Therefore, in order for VA to obtain the records from Dr. K. H., he must sign and return the appropriate authorization form so that VA may request these records in his behalf. A review of the claims file, to include the Virtual VA e-Folder, reflects that the last VA treatment records on file date from June 2012. Given the Veteran's previous assertions that his back pain has worsened, to include radiation of that pain into the lower extremities, the Board finds it likely that the Veteran has sought treatment for his low back since June 2012. Therefore, it must be ascertained whether there are additional VA treatment records available. The June 2012 remand had also instructed that the Veteran be afforded VA orthopedic and neurologic examinations. As noted in the remand, the Veteran had been examined by VA in April 2011. The report of this examination noted his complaints of pain that radiated along the medial and lateral aspect of his lower extremities and a physical examination that found no sensory impairments in the lower extremities. However, no electromyography (EMG) or nerve conduction studies were performed. The June 2012 remand had instructed that such testing needed to be conducted. An August 2012 neurological evaluation indicated that an EMG study had been conducted. However, there is no evidence of record that indicates that this test was done, and there is no addendum to the August 2012 opinion suggesting that the examiner re-considered his opinion in light of any completed testing. This is despite the examiner's comment that any final diagnosis would be rendered "[a]fter I review the EMG..." It must be determined whether this EMG testing was done and, if so, the results must be included in the claims folder. Thereafter, the Veteran must be afforded another VA orthopedic and neurologic examination. This examination must consider all records obtained in conjunction with this remand, to include any VA and private treatment records and any EMG results, in determining the current nature and degree of severity of his service-connected lumbosacral strain. Accordingly, the case is REMANDED for the following action: 1. The Veteran must be requested to sign and return a completed authorization form in order for VA to obtain the treatment records of Dr. K. H. All efforts to obtain these records must be documented in the claims folder. If no such records are available, the Veteran and his representative must be so informed and must also be informed of the efforts to obtain the records. 2. Obtain and associate with the claims folder all VA treatment records pertaining to the Veteran's low back developed from June 2012 to the present. All efforts to obtain these records must be documented in the claims folder. All efforts to obtain these records must continue until it is determined that they are unavailable or that further efforts to obtain them would be futile. 3. Obtain and associate with the claims folder the results of any EMG tests conducted by VA in August 2012. All efforts to obtain these records must be documented in the claims folder. All efforts to obtain this report must continue until it is determined that it is unavailable or that further efforts to obtain it would be futile. 4. Following the completion of the above development, afford the Veteran VA orthopedic and neurological examinations to determine the current severity of his service-connected lumbar spine disability and lower extremity disabilities. All appropriate tests and studies should be performed, to include, if needed, EMG or NCS testing to assess neurological impairment. The examiner should review the Veteran's claims file and note such a review in any examination report. The examiner should address whether the Veteran has developed any neurologic abnormality (such as radiculopathy, peripheral neuropathy or sensory impairment) that can be associated with the service-connected lumbar spine disorder. If so, please state the neurologic diagnosis or diagnoses; and, if any, identify the specific extremity or extremities involved. This determination should also be expressed, if feasible, in terms of mild, moderate, or severe for each such extremity affected by radiculopathy, peripheral neuropathy, or sensory impairment. The examiners must also provide full range of motion studies, using a goniometer. Consideration must be given to any functional loss due to pain and weakness causing additional disability beyond that reflected on range-of-motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that the pain actually sets in. A complete rationale should be given for each opinion expressed. In this regard, a discussion of the facts and medical principles involved would be considerable assistance to the Board. 5. The RO/AMC should review the examination report(s) to ensure that it (they) contain all findings and opinions requested in the remand. 6. The Veteran must be advised of the importance of reporting to the scheduled VA examination and of the possible adverse consequences, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2014). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examinations must be included in the claims folder and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 7. If any benefit sought on appeal remains denied, the Veteran and his representative must be provided a supplemental statement of the case and an opportunity to respond. The case should then be returned to the Board for further appellate consideration is otherwise in order. 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). _________________________________________________ DENNIS F. CHIAPPETTA 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).