Citation Nr: 1804339 Decision Date: 01/23/18 Archive Date: 01/31/18 DOCKET NO. 11-24 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an evaluation in excess of 20 percent for spondylosis of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Rideout-Davidson, Counsel INTRODUCTION The Veteran had active duty service from August 1983 to June 1986 and from April 1987 to March 2005. He also had additional service in the Texas Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO in July 2013. A transcript of that hearing has been associated with the claims file. The Board remanded the claim for further development in February 2013 and January 2017. That development has been completed, and the case has since been returned to the Board for appellate review. During the pendency of the appeal, in a January 2016 rating decision, the Agency of Original Jurisdiction (AOJ) increased the evaluation for the Veteran's disability from 10 percent to 20 percent, effective October 20, 2009. However, applicable law mandates that, when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Thus, the issue has been recharacterized as reflected on the title page. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The December 2009 VA examiner indicated that there were signs of intervertebral disc syndrome (IVDS), which causes erectile dysfunction. However, the January 2016 VA examiner stated that the Veteran does not have IVDS or any neurologic abnormalities or findings related to his thoracolumbar spine (back) condition other than radiculopathy of the right lower extremity, which is already service-connected. A June 2016 VA examiner did assess the Veteran as having IVDS, but again found that were no neurologic abnormalities or findings related to his thoracolumbar spine (back) condition other than radiculopathy. In June 2017, the latter examiner explained that spondylosis is a broad term used to describe some type of degeneration of the spine, which is most often osteoarthritis of the spine (spine health). She opined that the spondylosis has progressed to degenerative disc disease and IVDS. Nevertheless, the question remains as to whether the Veteran has any neurological manifestations of the disorder, to include erectile dysfunction. As noted, the most recent VA examination reports did not find any neurological abnormalities other than radiculopathy, but they did not specifically address any erectile dysfunction. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Moreover, the Court has held that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive range of motion, as well as with weight-bearing and nonweight-bearing. Correia v. McDonald, 25 Vet. App. 158 (2016). In this case, the VA examination reports do not include such findings. The June 2017 VA examiner did indicate that there was no pain on passive range of motion and weight-bearing, but the range of motion was not provided. Therefore, the Board finds that an additional VA examination is needed to ascertain the severity and manifestations of the Veteran's service-connected spine disability. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for his service-connected spine disability. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims files. The AOJ should also secure any outstanding VA treatment records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected spondylosis of the lumbar spine. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a clinical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In particular, the examiner should provide the range of motion of the thoracolumbar spine in degrees on active motion, passive motion, weight-bearing, and nonweight-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 provide an explanation for this determination in the report. The examiner should state the total duration of any incapacitating episodes over the past 12 months and identify any neurological manifestations of the disability other than radiculopathy of the right lower extremity. He or she should specifically address whether the Veteran has erectile dysfunction that is a neurological manifestation of the Veteran's spondylosis of the lumbar spine. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion). The examiner should further discuss any additional functional impairment that the Veteran experiences during flare-ups. In addition, the examiner should address whether range of motion measurements on active motion, passive motion, weight-bearing, and nonweight-bearing can be estimated where not actually measured for the other VA examinations conducted during the appeal period. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should provide an explanation for this determination in the report. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The AOJ should review the examination report to ensure compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of the additional evidence. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and be 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 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). _________________________________________________ J.W. ZISSIMOS 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).