Citation Nr: 1608869 Decision Date: 03/07/16 Archive Date: 03/15/16 DOCKET NO. 10-35 883 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial rating in excess of 20 percent for a lumbar spine disorder, to include degenerative disc disease, scoliosis, and kyphosis. REPRESENTATION Veteran represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1978 to September 1981. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. REMAND In a December 2009 rating decision, service connection was granted for the Veteran's lumbar spine disorder, to which a 20 percent disability rating was assigned. The Veteran appealed, seeking a higher initial rating. The Veteran's last VA examination evaluating the severity of his service-connected lumbar spine disorder was in October 2009. At a November 2015 hearing before the Board, the Veteran testified that his symptoms had worsened since his last VA examination. See Jandreau v. Nicholson, 492 F.3d. 1372, 1377, n.4 (Fed. Cir. 2007) (holding that a layperson is competent to identify observable symptoms). He also testified that the October 2009 VA examination did not fully assess his lumbar spine disorder because he was not examined during a period of exacerbation. The Veteran submitted a December 2015 report prepared by his private chiropractor, R.W., M.D. Dr. W. opined that the Veteran's lumbar spine disorder had worsened from previous x-rays and would continue to increase in severity. Although Dr. W. conducted range of motion testing, the examination did not completely assess the current severity of the Veteran's lumbar spine disorder. Specifically, Dr. W. did not determine whether there was pain throughout range of motion testing. Dr. W. also did not discuss any additional functional loss after repetitive use testing or during flare-ups. See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (holding that because the examiner failed to address any range of motion loss specifically due to pain and any functional loss during flare-ups, the examination lacked sufficient detail necessary for a disability rating). The December 2015 report also did not determine whether the Veteran had ankylosis. Therefore, given that the most recent VA examination was conducted over six years ago, and there is an indication that the Veteran's disability may have increased in severity, the Board finds that a remand is necessary to conduct another VA examination to assess the current severity of the Veteran's service-connected lumbar spine disorder. See Green v. Derwinski, 1, Vet. App. 212, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination). Additionally, the Veteran testified that he experienced pain, numbness, and tingling on the left side of his body, particularly in his leg. The October 2009 VA examiner concluded that the Veteran had no neurological abnormalities associated with his lumbar spine disorder. In December 2015, Dr. W. stated that the neurological findings of the lower extremities were within normal limits for dermatomes, myotomes, and deep tendon reflexes, but that the Veteran's lumbar spine disorder would eventually lead to neurological deficits. However, the report does not indicate what neurological testing was performed and the results thereof. Also, it is not clear from the report whether Dr. W. specifically addressed the Veteran's complaints of numbness and tingling on the left side. The December 2015 report did not indicate what testing was done. Therefore, despite the previous findings of normal neurological results, and in light of the Veteran's complaints of numbness and tingling, the VA examiner must also address whether the Veteran has any neurological issues associated with his service-connected lumbar spine disorder. Accordingly, the case is remanded for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of his claims. 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 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 and his representative must then be given an opportunity to respond. 2. The Veteran must be afforded an appropriate VA examination to determine the current severity of his service-connected lumbar spine disorder. The Veteran's electronic claims file must be made available to the examiner, and the examiner must indicate that these records have been reviewed. All indicated testing must be conducted. All pertinent symptomatology and findings should be reported in detail. The examiner should describe the nature and severity of all manifestations of the Veteran's lumbar spine disorder. The examiner must conduct full range of motion testing of the lumbar spine. The examiner must record the range of motion on clinical evaluation in terms of degrees with a goniometer. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, or incoordination associated with the lumbar spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. The same range of motion testing must then be repeated after at least three repetitions. In addition, the examiner must indicate whether, and to what extent, the Veteran experiences likely functional loss of the lumbar spine due to pain or any of the other symptoms noted above during flare-ups or with repeated use; to the extent possible, the examiner must express any such additional functional loss in terms of additional degrees of limited motion. The examiner must state whether there is favorable or unfavorable ankylosis of the thoracolumbar spine. The examiner must also determine whether the Veteran's lumbar spine disorder results in any neurological disorder. In this regard, the examiner must consider the Veteran's complaints of numbness and tingling along the left side of his body, particularly in the leg. If so, the examiner must comment on the severity of any such disorder. 3. The RO must notify the Veteran that it is his responsibility to report for the examination 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 the aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After the development requested has been completed, the RO must review the examination report to ensure that it is in complete compliance with the directives of this remand. If the report is deficient in any manner, the RO must implement corrective procedures at once. 5. After completing the above actions, and any other development indicated by any response received as a consequence of the actions taken above, the RO must re-adjudicate the issues on appeal. If the benefit sought on appeal remains denied, the RO must provide the Veteran and his representative a supplemental statement of the case and an appropriate period of time in which to respond, before the case is returned to the Board. No action is required by the Veteran until he receives further notice; however, he has the right to submit additional evidence and argument on the matter the Board has remanded. 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).