Citation Nr: 1752034 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 10-07 195 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for service-connected lumbosacral strain, currently rated as 40 percent disabling. 2. Entitlement to an increased rating for service-connected right lower extremity radiculopathy, currently rated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Williams, Counsel INTRODUCTION The Veteran served on active duty from July 1987 to July 1989. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ) in November 2011. A transcript of this proceeding has been associated with the claims file. In April 2012, July 2013, and May 2016 the case was remanded for additional development, to include obtaining outstanding treatment records and providing VA examinations and medical opinion. The Agency of Original Jurisdiction (AOJ) substantially complied with all requested development, and the case has now been returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND In May 2016, the Board remanded the appeal to obtain missing VA treatment records and to afford the Veteran a new VA examination. While a new examination was obtained, unfortunately, neither the prior examinations conducted in October 2008, June 2012, and May 2014, nor the newly obtained VA examination in August 2016 comply with all regulations applicable to examination of painful joints, and remand is required for further development concerning the Veteran's lumbar spine disability. Specifically, the examinations did not address the necessary findings regarding active motion, passive motion, weight-bearing, and nonweight-bearing testing of the lumbar spine. See Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, an additional VA examination addressing such is needed. The Board also finds that the Veteran's right lower extremity radiculopathy is intertwined with her overall lumbar spine disability and requires remand for current examination as well. In addition, updated treatment records should be obtained. The record reflects that the Veteran continues to be followed by private physicians including a neurosurgeon (Dr. Henegar). See August 2016 private treatment records. While records have previously been received from Drs. Henegar and Maitra, the Veteran should be given another opportunity to identify any relevant, outstanding private treatment records. Upon remand, the AOJ should provide the Veteran with a VA Form 21-4142 release form, and if the Veteran provides a completed release form, then request the identified private treatment records and associate them with the record. See 38 U.S.C. § 5103A(b)(1); 38 C.F.R. § 3.159(c)(1). The most recent VA treatment notes of record are dated in May 2016. While the Veteran's claim is in remand status, the AOJ must obtain all outstanding VA medical records. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran to ask her to identify any additional pertinent private treatment records. Request that she provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any updated treatment records from any private medical providers who have treated her for the lumbar spine disability and radiculopathy. After the Veteran has signed the appropriate releases, those records not already associated with the record should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the record. If records identified by the Veteran cannot be obtained, a notation to that effect should be included in the claims file, and the AOJ must notify the Veteran and her representative of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 2. Obtain all of the Veteran's outstanding VA treatment records from the Columbia VAMC in South Carolina for the period from May 2016 through the present. All information which is not duplicative of evidence already received should be associated with the claims file. If the AOJ is unable to obtain any of the relevant records sought, it shall notify the Veteran that it has been unable to obtain such records by identifying the specific records not obtained, explaining the efforts used to obtain those records, and describing any further action to be taken with respect to the claim. 3. Then, schedule the Veteran for an examination in order to determine the current level of severity of her service-connected lumbar spine disability and right lower extremity radiculopathy. The entire record, including a copy of this REMAND, must be made available to the examiner who should indicate on the examination report that (s)he has reviewed the record in conjunction with the examination. All indicated studies, including X-ray and range of motion studies in degrees using a goniometer, should be performed. Full range of motion testing should be performed where possible. The joint(s) involved should be tested in both active and passive motion, and in weight-bearing and non-weight-bearing motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. Tests of joint movement against varying resistance should be performed. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. If the examiner is unable to do the requested action above, he/she must take into consideration range of motion on repetitive testing and Deluca, and determine whether the manifestations of the Veteran's functional limitations are equivalent to unfavorable ankylosis of the entire thoracolumbar spine. Furthermore, the examiner should indicate whether the Veteran's lumbar spine disability is so severe so as to result in incapacitating episodes (i.e., episodes in which her adverse symptomatology required bed rest ordered by a physician). If so, the examiner should comment on the duration and frequency of such incapacitating episodes. The examiner should identify all neurological findings in the lower extremities related to the service-connected lumbar spine disability, and fully describe the extent and severity of those symptoms. The examiner should identify the specific nerve(s) involved, to include whether there is incomplete or complete paralysis, and offer an opinion as to the degree of impairment of the nerve (that is, whether it is mild, moderate, moderately severe, or severe in nature). The examiner should also identify any muscular atrophy. 4. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the increased rating claims. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate 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). 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. §§ 5109B, 7112 (2012). _________________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).