Citation Nr: 1609821 Decision Date: 03/11/16 Archive Date: 03/22/16 DOCKET NO. 11-05 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating for lumbosacral degenerative disc disease (DDD) rated 20 percent disabling. 2. Entitlement to an increased rating for weakness of the left lower extremity (now claimed as sympathetic reflex syndrome), rated 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Fussell, Counsel INTRODUCTION The Veteran had active service from January 1984 to January 1987. This matter comes before the Board of Veterans' Appeals (Board) from a June 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Although a February 2011 rating decision denied service connection for a right elbow condition, a January 2013 rating decision granted service connection for degenerative joint disease (DJD) and sprain of the right elbow, which was assigned an initial 10 percent rating, all effective August 13, 2010. The Veteran did not appeal that decision. Information on file indicates that the Veteran was scheduled for a hearing before a Decision Review Officer (DRO) but that the hearing was cancelled and a rating examination was to be scheduled. He was afforded a VA rating examination on September 32, 2011. He was scheduled for a hearing before the Board in February 2016 but he failed to attend. A February 2015 rating decision granted a temporary total rating based on need for convalescence from September 15, 2014, following surgery for chondromalacia patella and DJD of the right knee, and a 10 percent schedular rating was resumed October 1, 2014. Also, that rating decision granted special monthly compensation (SMC) based on housebound (HB) criteria from September 15, 2014 to October 1, 2014. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In correspondence received in February 2013 the Veteran alleged that a QTC examiner had incorrectly recorded that the Veteran could walk without limitation. He indicated that "next time" he wanted to have any rating examination "taped." However, the Board notes that a VA claimant has no right to record an examination. Generally see VAPGCPREC 04-91, 56 Fed.Reg. 25156 (1991). Moreover, the Veteran was apparently referring to a rating examination conducted on September 3, 2011. At that time the examiner recorded that the Veteran related having functional impairment in several areas, including walking. However, the examiner did state that the Veteran's walking was steady and that he did not require any assistive device for ambulation. In any event, in the August 2015 Written Brief Presentation the Veteran's service representative noted that the Veteran was most recently given an exam dated September 3, 2011 for evaluation of weakness, left lower extremity (now claimed as sympathetic reflux syndrome) currently evaluated as 20 percent disabling, and evaluation of degenerative disc and joint disease, lumbosacral spine currently evaluated as 20 percent disabling. It was asserted that the medical evidence needed to make sure the Veteran receives a fair and impartial determination was "stale" and it was requested that the Board remand the case for a new rating examination of the service-connected disabilities at issue. The Board concurs but also notes that a private chiropractor of the Bay Area Chiropractic reported in August 2010 statement having continuously treated by Veteran since 2002. In correspondence received in February 2013 the Veteran reported that he received chiropractic treatment year round. Thus, records of that chiropractor since May 2008 (one year prior to receipt of the May 2009 claim for increase) should be obtained. Accordingly, the case is REMANDED for the following action: 1. The obtain the names and addresses of all medical care providers, VA and private, who have treated the veteran for disability of the low back and neurological condition of the left leg since May 2008 (a time one year prior to receipt of claim). After securing the necessary release, the RO should obtain these records. Any records received should be associated with the claims folder. This should include taking the appropriate steps to request from the Veteran the necessary authorization or release form to obtain clinical records of a private chiropractor of the Bay Area Chiropractic since May 2008. If obtained, these records should be associated with the claims files. 2. The veteran should be afforded VA orthopedic and neurology examinations to determine the extent and severity of his service-connected low back disorder and his neurological disorder of the left lower extremity. The examinations should include any tests or studies deemed necessary for an accurate assessment. X-ray examination of the lumbosacral spine should be performed. If possible and recommended and if the Veteran is agreeable, he should be afforded EMG and NCV studies. The claims folder should be made available to the examiner for review before the examination. The orthopedist and neurologist should (1) record the range of motion of the lumbosacral spine, and describe the limitation of motion, if any, in terms of the degrees of painless motion and the degrees of painful motion, if any, as well as in terms of whether there is slight, moderate, or severe limitation of motion; (2) indicate whether the veteran has mild, moderate, moderately severe, or severe disability of the left lower extremity; and (3) specifically comment on the functional limitations, if any, caused by the Veteran's service-connected disabilities. Any functional loss, including the inability to perform normal working movements with normal excursion, strength, speed, coordination, and endurance should be noted. Also functional impairment, such as decreased strength, endurance or range of motion due to pain, including during exacerbations, or after repetitive use should be recorded. The examiners should specify any functional loss due to pain or weakness, and document all objective evidence of those symptoms. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2000); DeLuca v. Brown, 8 Vet. App. 202 (1995). In addition, the examiners should provide an opinion on the degree of any functional loss likely to result from a flare-up of symptoms or on extended use and to not limit an evaluation of disability to a point in time when the symptoms are quiescent. The examiners should also document, to the extent possible, the frequency and duration of exacerbations of symptoms. 3. Thereafter, the RO should readjudicate the claims. If the claims remain denied furnish the Veteran and his representative a Supplemental Statement of the Case (SSOC) and provide them the appropriate time period for the submission of any additional evidence or argument. Thereafter, return the case to the Board. 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). _________________________________________________ WAYNE M. BRAEUER 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).