Citation Nr: 1600046 Decision Date: 01/04/16 Archive Date: 01/12/16 DOCKET NO. 12-33 888A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for degenerative disc disease with spinal stenosis prior to June 28, 2010. 2. Entitlement to an initial evaluation in excess of 40 percent for degenerative disc disease with spinal stenosis on or after June 28, 2010. 3. Entitlement to an initial evaluation in excess of 10 percent for degenerative joint disease of the left ankle. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Nathanson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1978 to October 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO granted service connection for degenerative disc disease with spinal stenosis and assigned a 10 percent rating effective from August 26, 2008, to June 27, 2010, and a 40 percent rating as of June 28, 2010. The RO also granted service connection for degenerative joint disease of the left ankle and assigned an evaluation of 10 percent effective from August 26, 2008. Subsequently, in an August 2013 rating decision, the RO continued the 10 percent evaluation for degenerative joint disease of the left ankle. The Board notes that, in a July 2014 rating decision, the RO granted service connection for radiculopathy of the right and left lower extremities and assigned separate 10 percent evaluations effective from May 27, 2014. The record currently available to the Board indicates that the appellant did not initiate an appeal with the RO's initial ratings or effective dates. Thus, those matters are not in appellate status. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). The Board also notes that the Veteran had requested a videoconference hearing before the Board in his November 2012 substantive appeal. He was scheduled for such a hearing in October 2015; however, he did not report for that proceeding. The Veteran has not requested that the hearing be rescheduled, nor has he provided good cause. Therefore, the Veteran's hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (d),(e). This appeal was processed using the Veterans Benefits Management System (VBMS). The Virtual VA paperless claims system contains additional VA treatment records and the May 2014 VA examination reports. Although the VA treatment records in Virtual VA that are dated after June 2014 have not been reviewed by the RO, the Board finds that there is no prejudice to the Veteran, as the claims are being remanded and the Agency of Original Jurisdiction (AOJ) will have an opportunity to review the records. See 38 C.F.R. § 20.1304. The remainder of the documents in Virtual VA are either duplicative of the evidence in VBMS or are irrelevant to the appeal. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran was most recently provided VA examinations in May 2014 in connection with his claims for increased evaluations for his service-connected lumbar spine and left ankle disabilities; however, there is an indication that these disabilities may have increased in severity since that time. In this regard, the Veteran went to the emergency room in June 2014 with complaints of ankle pain and in October 2014 with complaints of low back pain. See June 2014 VA treatment record; October 2014 VA treatment record. He has also been referred for a neurosurgery consultation. Therefore, the Board finds that additional examinations should be provided to ascertain the current severity and manifestations of his service-connected lumbar spine disability and left ankle disability. Furthermore, at the May 2014 VA examination for the left ankle, the Veteran reported that he had flare-ups that impacted the function of his ankle. He explained that his ankles would be painful and sore. Although the examiner described the additional functional impairment caused by flare-ups of the right ankle, the examiner did not indicate whether there was any additional functional impairment caused by flare-ups of the left ankle. Therefore, on remand, the examiner should address any functional impairment caused by flare-ups of the left ankle. Moreover, the Board notes that there were additional VA treatment records located in the Virtual VA paperless claims system that have not been reviewed by the AOJ. The Veteran also did not provide a waiver of the RO's initial consideration of that evidence. Thus, the Board finds that a remand is required for the AOJ to issue a supplemental statement of the case. See 38 C.F.R. §§ 19.31,19.38 (requiring issuance of SSOC following Board remand unless Board specifies otherwise or purpose of remand is to assemble records previously considered and discussed in prior SSOC); 20.1304. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his lumbar spine and left ankle, to specifically include records from Brier Creek (formerly Fayetteville Pain and Spine) and Rocky Mountain Pain and Spine. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding, relevant VA medical records, to include any treatment records dated from April 2015 to the present. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected degenerative disc disease with spinal stenosis. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, such as observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's disability. In particular, he or she should provide the range of motion of the thoracolumbar spine in degrees and state whether there is any form of ankylosis. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability, including any additional loss of motion, due to those factors. The examiner should further state the total duration of incapacitating episodes over the past 12 months and identify all neurological manifestations of the disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review. 3. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected degenerative joint disease of the left ankle. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, such as observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the Veteran's service-connected left ankle disability. In particular, he or she should provide the range of motion in degrees and indicate whether any limitation of motion is considered moderate or marked. The examiner should also state whether there is any ankylosis, malunion of os caclis or astragalus, or an astragalectomy. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability, including any additional loss of motion, due to those factors. Any additional functional loss due to flare-ups should also be noted. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing the above actions, the AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 5. The case should then be reviewed by the AOJ on the basis of additional evidence. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). These claims 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). _________________________________________________ J.W. ZISSIMOS 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).