Citation Nr: 1647543 Decision Date: 12/21/16 Archive Date: 12/30/16 DOCKET NO. 09-39 739 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a rating in excess of 10 percent for service-connected herniated nucleus pulposus, intervertebral disc syndrome and degenerative disc disease of the lumbar spine, with left lower extremity radiculopathy, to include whether a separate compensable rating is warranted for the left lower extremity radiculopathy. 2. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Purdum, Counsel INTRODUCTION The Veteran served on active duty from May 1984 to July 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied a rating in excess of 10 percent for herniated nucleus pulposus, intervertebral disc syndrome and degenerative disc disease of the lumbar spine with left lower extremity radiculopathy, and granted service connection for right lower extremity radiculopathy and assigned a 10 percent rating. In April 2011 the Veteran testified at a videoconference hearing held before an Acting Veterans Law Judge. A transcript of that hearing is of record. The Acting Veterans Law Judge who conducted that hearing is no longer employed by the Board. In September 2016, the Veteran declined the opportunity to be heard by another Veterans Law Judge. In February 2014, the Board remanded this case for additional development. The file has now been returned to the Board for further consideration. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND New case law provides a precedential finding that 38 C.F.R. § 4.59 (2015) requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. Correia v. McDonald, No. 13-3238, 2016 WL 3591858 (Vet. App. July 5, 2016). The most recent VA examination report, dated in May 2014, conducted more than two years prior, does not include any indication that the Veteran underwent such range of motion testing. On remand, the AOJ should schedule the Veteran for a new VA examination to determine the current severity of his lumbar spine and right lower extremity disabilities. In its February 2014 remand, the Board requested that the AOJ obtain the Veteran's outstanding VA treatment records, specifically including any records from the VA Medical Center (VAMC) in Oklahoma City, Oklahoma, dated in 2011. Records from that VAMC were obtained, and contain record of treatment for the Veteran's lumbar spine disability in 2011. However, the most recent VA treatment records available for review; save for records of psychiatric treatment and reports of VA examinations, are dated in November 2012. On remand, the AOJ should obtain the Veteran's updated VA treatment records. Since the last Board remand, the AOJ attempted to obtain the Veteran's updated private treatment records from Dr. Meyer. It does not appear that Dr. Meyer responded to the AOJ's April 2014 and September 2014 requests. On remand, the AOJ should obtain an updated authorization from the Veteran and again attempt to obtain his updated private treatment records, dated after January 2009. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain and associate with the claims file the Veteran's updated VA treatment records dated since November 2012 from any appropriate VAMC or VA facility. 2. Request an updated authorization from the Veteran and make arrangements to again attempt to obtain and associate with the claims file his private treatment records dated since January 2009 from Dr. Meyer. 3. Then, schedule the Veteran for a VA examination with an appropriate examiner to determine the current severity of his lumbar spine and right lower extremity disabilities. If possible, the appropriate Disability Benefits Questionnaire (DBQ) should be completed. (a) All necessary diagnostic testing and evaluation should be performed, and all clinical findings reported in detail, specifically to include range of motion testing of the lumbar spine considering active and passive motion, in weight-bearing and nonweight-bearing. The examiner should also determine whether there is weakened movement, excess fatigability, or incoordination, 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; and whether there is any pain which could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. (b) The examiner should determine whether the Veteran experiences incapacitating episodes, as defined by 38 C.F.R. § 4.71a (2015), and the frequency and total duration of such episodes over the course of the past 12 months. (c) The examiner should identity any neurological manifestations of the Veteran's lumbar spine disability, beyond that of the already service-connected radiculopathy of the right lower extremity, to include bowel or bladder dysfunction. (d) The examiner should characterize the radiculopathy of the right lower extremity as mild, moderate, moderately severe, or severe and indicate whether there is muscular atrophy and, if so, the extent of such atrophy. The Veteran's claims file, including a copy of this remand, should be made available to and reviewed by the examiner. The examination report should reflect that such a review was undertaken. The examiner should provide a comprehensive report including complete explanation for all opinions and conclusions reached. 4. After completing all of the above, and any additional development deemed warranted, readjudicate the Veteran's claims. If the benefits sought are not granted, the Veteran and his representative must be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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 5). _________________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2015), 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).