Citation Nr: 1802113 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-34 740 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease, lumbar spine, with herniated nucleus pulposus (claimed as arthritis). 2. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy. 3. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy. REPRESENTATION Appellant represented by: David Davidson, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD E. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1987 to August 1997. This case comes to the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. During the course of the appeals process, the RO has issued additional rating decisions. In November 2013, the RO's rating decision granted service connection for right lower extremity radiculopathy at 10 percent and increased the evaluation for left lower extremity radiculopathy to 10 percent. A September 2015 rating decision continued the evaluation of 20 percent for the lower back disability and the 10 percent evaluation for radiculopathy of each lower extremity. However, as a higher rating is available for the lower back disability, as well as the bilateral lower extremity radiculopathy, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher rating remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The Veteran appeared before the undersigned Veterans Law Judge in a videoconference hearing in May 2017. The transcript of the hearing is associated with the electronic claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Upon review of the record, the Board concludes that further evidentiary development is necessary. Although the Board sincerely regrets this delay and is appreciative of the Veteran's service to her country, a remand is necessary to ensure VA provides the Veteran with appropriate process and assistance in developing her claim prior to final adjudication. The Veteran contends that her lower back disability and associated bilateral lower extremity radiculopathy have increased in severity. The Veteran was last afforded a VA examination for her lower back disability in August 2015. While mere passage of time, alone, since an otherwise adequate examination, does not obligate VA to have the Veteran reexamined simply as a matter of course, in the present case a new examination is warranted. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). At the most recent VA examination in August 2015, the Veteran's lower back disability was measured and forward flexion was documented to 50 degrees, which supported the previous and current rating of 20 percent under the applicable Diagnostic Code. At the same VA examination, the examiner noted that the Veteran had mild symptoms of radiculopathy in the bilateral lower extremities. However, since that time the Veteran has testified at the May 2017 hearing that her back condition has worsened. The Veteran specifically outlined that she has a difficult time bending over to do daily tasks such as putting on shoes. She also testified that she has episodes of her back "dislocating" which render her "ineffective." To relieve these symptoms she uses a TENS unit and wears a back brace. As for the Veteran's radiculopathy, she testified at the May 2017 hearing that the condition has also worsened bilaterally to include increased pain. She stated that since the previous VA examination she was prescribed a medication that she chose not to take due to the side effects. Additionally, during the May 2017 hearing, the Veteran referred to medical records generated during 2016 chiropractic appointments, which do not appear to be included in the record. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any outstanding treatment records (to include any private, VA, or military) for her lower back disability or lower extremity radiculopathy. In particular, the Veteran should be asked to identify the chiropractor provide that provided her treatment in 2016. With any assistance required from the Veteran, make appropriate efforts to obtain any outstanding treatment records identified by the Veteran. 2. Thereafter, schedule the Veteran for a VA examination to determine the current severity of her service-connected lower back disability, to include evaluation of the Veteran's service-connected lower extremity radiculopathy, by an appropriate medical professional. All appropriate tests and studies shall be conducted. All relevant electronic records, including a copy of this remand, must be sent to the examiner for review. The examination should be conducted in accordance with the current disability benefits questionnaire, to include compliance with 38 C.F.R. § 4.59 as interpreted in Correia. The examiner should conduct a thorough examination of the Veteran's service-connected back disability and report on the nature, severity, and extent of any associated symptomatology related to the back disability. This should include a report of the ranges of motion of the spine (in degrees) on both active motion and passive motion and in both weight-bearing and non-weight bearing. 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. The examiner should also specifically answer the following question: What is the extent of any additional limitation in motion (in degrees) of the spine due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use? The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran, as such is required by the law as interpreted by the Court. The examiner must provide reasons for any opinion given. The examiner is advised that the Veteran is competent to report her symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of her disabilities. 3. Thereafter, readjudicate any issues remaining on appeal. If the benefits sought remain denied, issue a supplemental statement of the case and provide the Veteran and her representative the requisite period of time to respond. The case should thereafter be returned to the Board for further appellate review, if otherwise in order. 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. §§ 5109B, 7112 (West 2014). _________________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).