Citation Nr: 1550805 Decision Date: 12/03/15 Archive Date: 12/10/15 DOCKET NO. 11-00 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to a rating for L3-L4 disc bulge, residuals of trauma, in excess of 20 percent prior to July 7, 2015, and in excess of 60 percent thereafter. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1983 to December 1987 and from May 1989 to July 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2014, the Board remanded the case for further development. In July 2015, the RO increased the disability rating for a back disability to 60 percent effective July 7, 2015. As the increase did not satisfy the appeal in full, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Historically, on October 12, 2006, the Veteran filed a claim for a rating in excess of 20 percent for his service-connected back disability. In February 2009, the RO proposed to reduce the rating to 10 percent and effectuated the reduction in an October 2009 rating decision. The Veteran was notified of this decision in May 2010. In a rating decision later that month, the RO determined that the reduction was erroneous and once again proposed to reduce the rating to 10 percent. The RO effectuated the reduction in a December 2010 rating decision. The Veteran appealed the RO's decision to the Board, which, in September 2014, restored the 20 percent rating and remanded the issue of entitlement to an increased rating for further development. In July 2015, the RO increased the disability rating to 60 percent effective July 7, 2015. The Board finds that further medical development is needed to decide the issues of entitlement to a separate rating for neurological abnormalities associated with the service-connected back disability and entitlement to an increased rating based on Intervertebral Disc Syndrome (IVDS). See 38 C.F.R. § 3.159(c)(4) (2015). As to IVDS, clarification is needed to determine whether the Veteran has experienced incapacitating episodes as defined by the General Rating Formula for Diseases and Injuries of the Spine. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note 1 (2015). The lay and medical evidence of record shows that the Veteran suffers from IVDS and severe flare-ups; however, it is unclear whether he has required physician-prescribed bed rest. See, e.g., VA treatment record (October 7, 2014). In July 2007, Dr. Lynn reported that pain, fatigue, and/or medication side effects would require 5 to 20 minute periods of rest during an eight hour work, but he did not prescribe bed rest. In September 2008 and November 2010, VA examiners concluded that there was no evidence of IVDS or incapacitating episodes over the past 12 months. In April 2009, Dr. Bash opined that the Veteran's back symptoms are most closely associated with the diagnostic criteria for a 20 percent rating. During a February 2010, RO hearing the Veteran reported that Dr. Lynn prescribed pain medications and that he took of 3 days off work due to back pain. Significantly, Dr. Lynn's treatment records have not been associated with the record and must be obtained upon remand. 38 C.F.R. § 3.159 (c)(1). A December 2, 2014, VA MRI report shows "[a]t least 6 weeks of activity modification (avoid/limit activities that aggravate symptoms)." A February 12, 2015, VA treatment record shows a clinical history of "[a]tleast 6 weeks of Activity modification (avoid/limit activities that aggravate symptoms)." In July 2015, a VA examiner opined that the Veteran experienced incapacitating episodes due to IVDS that totaled at least 6 weeks during the past 12 months. The examiner cited to the Veteran's VA Knoxville, Tennessee, treatment records and described the treatment as "medication". Medical development is needed to address whether the Veteran has experienced incapacitating episodes that required physician-prescribed bed rest and, if so, identify records of such treatment. As to radiculopathy, further medical development is needed to decide the issue of entitlement to a separate rating for neurological abnormality associated with the service-connected back disability. During the February 2010 RO hearing, the Veteran reported that he cannot have sex due to his back disability; however, it is unclear if this is due to a neurological abnormality such as erectile dysfunction. Additionally, the Veteran has reported a longstanding history of pain and numbness in the lower extremities. On January 3, 2013, a VA neurologist stated that there are "[s]ome borderline abnormalities [that] may be related to [the Veteran's] large size and lower extremity edema. Clinically he demonstrates an area of numbness and paresthesias in the left lateral thigh most consistent with the diagnosis of meralgia paresthetica, a lateral femoral cutaneous sensory neuropathy. This is seen more commonly in overweight patients and may be related to tight fitting pants or compression of a sensory nerve at the waistline. The EMG test does not help to confirm this probable diagnosis since this sensory nerve cannot be assessed well in overweight patients." However, a July 2015 VA examination report shows radiculopathy of the left and right sciatic nerve roots with severe pain and paresthesias and moderate numbness. However, the examiner concluded, without rationale, that the radiculopathy did not affect the Veteran. Further medical development is needed to determine if the Veteran has any neurological abnormalities and, if so, whether they are related to his service-connected back disability. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request authorization and consent to release information from Dr. Lynn (identified during the February 2010 RO hearing), as well as any other private healthcare provider who has treated the Veteran's back disability since 2006. Upon receipt of such, take appropriate action to contact the identified providers and request complete records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. If such records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination by an appropriate medical professional. The examiner must review the entire claims file. The examiner is to determine whether the Veteran has had any incapacitating episodes due to IVDS since 2006 and, if so, identify records of such treatment. The examiner must specifically address the evidence identified above, particularly the July 2015 VA examiner's report, which shows that the Veteran experienced at least 6 weeks of incapacitating episodes. The examiner is to be advised that an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The examiner is to also determine whether the Veteran has any neurological abnormalities associated with his service-connected back disability, including erectile dysfunction and/or radiculopathy. The examiner must specifically address the evidence identified above, particularly the July 2015 VA examiner's report, which shows that the Veteran experiences radiculopathy of the lower extremities. 3. Finally, after conducting any other development deemed necessary, readjudicate the appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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 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). _________________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the 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).