Citation Nr: 1537326 Decision Date: 09/01/15 Archive Date: 09/10/15 DOCKET NO. 13-28 635 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for service-connected lumbosacral spine strain and degenerative disc disease. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. L. Marcum, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1976 to July 1980 and from May 1982 to March 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. REMAND The Veteran is seeking an evaluation in excess of 10 percent for his service-connected lumbosacral spine strain and degenerative disc disease. Review of the evidence of record reveals that VA has a further duty to assist the Veteran in developing evidence pertinent to his claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). In July 2015, the Veteran's representative submitted a statement indicating that the Veteran experienced continuous pain in his low back, required daily medicine to control the pain, and received monthly treatment from a chiropractor to control his muscle spasms. The Veteran's representative also stated that the Veteran believed that his lumbosacral spine disorder was worse and that a higher initial evaluation was warranted. As an initial matter, the RO must, with the assistance of the Veteran, obtain any available updated medical records regarding treatment for his service-connected lumbosacral spine strain and degenerative disc disease, including the treatment records from the Veteran's monthly visits to the chiropractor to control his muscle spasms. Additionally, given the passage of time since the Veteran was last examined, and with consideration of the Veteran's statements that manifestations of his service-connected low back disorder had become worse, the Board finds that another medical examination is required to evaluate the severity of his service-connected lumbosacral spine strain and degenerative disc disease. 38 C.F.R. § 3.159(c)(4)(i) (2015); see Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (indicating that a Veteran is entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity); see also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination). Accordingly, the case is remanded for the following actions: 1. The RO must contact the Veteran and afford him the opportunity to identify all VA and non-VA medical care providers who have treated him for his service-connected lumbosacral spine strain and degenerative disc disease during the course of this appeal, including any available treatment records from the Veteran's monthly visits to the chiropractor to control his muscle spasms. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records, the RO is unable to secure the same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Thereafter, the Veteran must be afforded an appropriate VA spine examination to determine the severity of his service-connected lumbosacral spine strain and degenerative disc disease. The claims file and all electronic records must be made available to the examiner, and the examiner must specify in the examination report that these records have been reviewed. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, in detail. The examiner must state whether there is any evidence of favorable or unfavorable ankylosis of the spine, and determine the active range of motion of the Veteran's lumbosacral spine, in degrees, by use of a goniometer noting by comparison the normal range of motion of the lumbosacral spine. If pain on motion of the lumbosacral spine is shown, the examiner must state at what degree the pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight bearing exertion. The examiner must state whether there is weakened movement, excess fatigability, or incoordination attributable to the service-connected lumbosacral spine strain and degenerative disc disease, expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. The examiner must also state whether the Veteran has intervertebral disc syndrome causing incapacitating episodes requiring prescribed bed rest, and if found, the examiner must report the frequency and total duration of such episodes over the course of the previous 12 months. A thorough neurological examination of the Veteran's low back must be conducted. The examiner must specifically state whether any neurologic manifestations found are associated with the Veteran's service-connected lumbosacral spine strain and degenerative disc disease. The examiner must also specifically state whether any neurologic manifestations found result in complete or incomplete paralysis of any nerve. The specific nerves involved must be identified. If incomplete paralysis is found, the examiner must state whether the incomplete paralysis is best characterized as mild, moderate, or severe; with the provision that wholly sensory involvement should be characterized as mild, or at most, moderate. 3. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2015). In the event that the Veteran does not report for a scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 4. The examination report must be reviewed to ensure complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above actions and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the RO must adjudicate the claim on appeal, to include separate evaluations for neurologic disorders associated with the Veteran's service-connected low back disorder, if any. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ JOY A. MCDONALD 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) (2015).