Citation Nr: 1758031 Decision Date: 12/14/17 Archive Date: 12/28/17 DOCKET NO. 13-21 891A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for herniated disc of the lumbar spine. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jacquelynn M. Jordan, Associate Counsel INTRODUCTION The Veteran served in the U.S. Army from July 2003 to March 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina. In the February 2012 rating decision, the Veteran was granted service connection for herniated disc of the lumbar spine status post partial directory, with residual scars, with an evaluation of 10 percent, effective March 22, 2011. Jurisdiction in this matter has been transferred to the RO in Salt Lake City, Utah. In September 2017, the Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board notes that at the September 2017 Board hearing, the Veteran indicated he would like to reopen the issues of entitlement to service connection for posttraumatic stress disorder and entitlement to service connection for elbows (also claimed as degenerative arthritis and joint pain), ankles and legs as secondary to his service-connected herniated disc of the lumbar spine status post partial discectomy, with residual scars. The August 2014 rating decision denied service connection for all of those issues. The Veteran did not appeal that decision. That decision became final. Please contact the Veteran regarding the necessary steps to reopen a service connection claim. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran is service-connected for herniated disc of the lumbar spine status partial discectomy with residual scars, currently evaluated as 10 percent disabling. The Veteran contends that his back is worse than his currently assigned rating and has increased in severity since the last VA examination in October 2011. At his September 2017 Board hearing, the Veteran stated that the pain in his back has increased and that he often has flare-ups that affect his ability to bend, lift, run, pull or push anything. VA is required to afford the Veteran a contemporaneous VA examination to assess the current nature, extent and severity of the Veteran's service-connected herniated disc of the lumbar spine status post partial discectomy with residual scars. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Therefore, a new VA examination is warranted. See VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination); Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, the case is REMANDED for the following action: 1. At the September 2017 Board hearing, the Veteran reported that he had not be provided a copy of his original medical records. Provide the Veteran with a copy of his complete medical record. 2. Schedule the Veteran for a VA examination to determine the current level of severity of his service-connected herniated disc of the lumbar spine, currently evaluated at 10 percent. The claims file, to include a copy of this remand must be made available to the examiner for review, and the examination report should reflect that such a review was accomplished. The examiner should elicit a complete history from the Veteran. All pertinent symptomatology, to include range of motion for the back, should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. Application of 38 C.F.R. § 4.40 regarding functional loss due to pain and 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination or pain on movement of a joint should be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). In addition, the examiner should opine as to the general functional and occupational limitations caused by the Veteran's herniated disc of the lumbar spine. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his lumbar spine symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should note that the VA CLINICIAN'S GUIDE requires the examiner to estimate the range of motion "per [the] Veteran." See VA CLINICIAN'S GUIDE at Ch. 11. 3. Notify the Veteran that he may submit lay statements from himself and other individuals who have knowledge of the Veteran's lumbar spine symptoms. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 4. The RO/AMC should then review the claims file. If any of the directives specified in this remand have not been implemented, appropriate corrective action should be undertaken before readjudication. Stegall v. West, 11 Vet. App. 26838 C.F.R. § (1998). 5. After completing the above actions and any other development, as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, readjudicate the claim on appeal. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further consideration. The Veteran 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). _________________________________________________ Cynthia M. Bruce 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) (2017).