Citation Nr: 1808102 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 14-17 873 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine status post discectomy, nerve root exploration, and decompression. 2. Entitlement to an initial rating in excess of 10 percent for left knee arthroscopic partial meniscectomy. 3. Entitlement to an initial compensable rating for residuals of right knee anterior cruciate ligament reconstruction and meniscus repair. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1980 to October 1994, October 2001 to December 2002, and February 2005 to January 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2013 and November 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In March 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board has determined that additional development is required and the case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of any and all health care providers who recently performed surgery on his back, and who have provided treatment for his back and knees. After acquiring this information and obtaining any necessary authorization, obtain and associate any pertinent records with the claims file. -ENSURE THAT IF THE VETERAN HAS HAD OR IS SCHEDULE TO HAVE A "NERVE BLOCK" SURGERY ON HIS BACK DISABILITY THAT THE RECORDS OF THIS PROCEDURE ARE INCLUDED IN THE RECORD. 2. After all available records have been associated with the claims file, schedule the Veteran for a VA examination to determine the severity and symptomatology of his back disability. IF FEASIBLE, the examination should be scheduled with a different examiner than the individual who conducted the April 2014 VA examinations. 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 review was accomplished. * May 2011 Private Medical Records (PMRs) - The Veteran complained of lower back pain and was observed to have normal movement in all extremities. * September 2011 VA Examination - The Veteran reported onset of back pain in 2007 while running that lasted for two weeks. He reported the episodes come and go, feel like muscle spasms, do not affect his ability to walk, and are alleviated with over-the-counter pain medication and ice. Range of motion measurements included flexion to 95 degrees, extension to 27 degrees, bilateral lateral flexion to 30 degrees, and bilateral rotation to 30 degrees. The examiner noted the Veteran has flare-ups once per year that last for one week. The Veteran was given a diagnosis of lumbar back spasms. * March 2013 PMRs - The Veteran complained of persistent lower back pain and underwent a L4 - L5 discectomy with L5 nerve root exploration. * July 2013 PMRs - The Veteran was noted to be working without restrictions. Range of motion measurements included extension to 20 degrees, flexion to 75 degrees, left lateral flexion to 33 degrees, and right lateral flexion to 25 degrees. * July 2013 VA Examination - The Veteran was diagnosed with chronic lumbar strain. * July 2013 Statement from the Veteran - The Veteran stated he has difficulty doing tasks at home, bending over, meeting the physical requirements of his job, and walking on uneven surfaces. *August 2013 PMRs - The Veteran's range of motion measurements included extension to 11 degrees, flexion to 0 degrees, left lateral flexion to 25 degrees, and right lateral flexion to 31 degrees. * April 2014 VA Examination - The Veteran was diagnosed with degenerative arthritis of the spine. The examiner noted the Veteran had no functional loss, no tenderness, and no muscle spasms. He stated the Veteran had normal strength and reflexes, and the condition of the spine did not impact the Veteran's ability to work. Range of motion measurements included 80 degrees of flexion, 30 degrees of extension, and bilateral lateral flexion and rotation to 30 degrees. Range of motion results following repetitive use testing with three repetitions included 80 degrees of forward flexion, 30 degrees of extension, and 30 degrees of bilateral lateral flexion and rotation. * May 2014 Statement from the Veteran - The Veteran stated the VA examiner at the April 2014 examination did not conduct all necessary tests, did not use a measuring device, and did not accurately record responses to questions. * June 2014, August 2014, and September 2014 VA Medical Records (VAMRs) - The Veteran complained of back pain and discomfort, was noted to have good range of motion, and was doing well on prescription pain medication. * October 2014 VAMRs- The Veteran was noted to have a paraspinal cystic lesion. * February 2015 PMRs - The Veteran was noted to have normal range of motion, and was diagnosed with lumbar spondylosis and postoperative degeneration resulting in a pain complex and related muscle discomfort. Facet injections were recommended for treatment. * March 2016 Hearing Transcript - The Veteran reported his daily pain level is at a five, he needs help with balance while getting dressed, and he has an altered gait. 3. Schedule the Veteran for a VA examination to determine the severity and symptomatology of his knee disabilities. The examination should be scheduled with a different examiner than the individual who conducted the April 2014 VA examinations. 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 review was accomplished. * September 2011 VA Examination - Range of motion measurements include 0 degrees of extension and 100 degrees of flexion of the right knee, and 0 degrees of extension and 110 degrees of flexion of the left knee. * April 2014 VA Examination - The Examiner noted the Veteran did not experience flare-ups, had no functional loss or tenderness, and muscle strength was normal. Range of motion measurements included 135 degrees of flexion and 0 degrees of extension of the right knee, and 140 degrees of flexion and 0 degrees of extension of the left knee. Repetitive use range of motion test measurements were 135 degrees of flexion of the right knee, and 140 degrees of flexion of left knee. * May 2014 Statement from the Veteran - The Veteran stated the VA examiner at the April 2014 examination did not conduct all necessary tests, did not use a measuring device, and did not accurately record responses to questions. * March 2016 Hearing Transcript - The Veteran reported that his right knee pops and is slightly loose, he is unbalanced, and he has daily pain and stiffness. 4. After completion of the above and any other appropriate development deemed necessary, readjudicate the issues on appeal on the basis of the additional evidence of record. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response 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. §§ 5109B, 7112 (2012). _________________________________________________ Vito A. Clementi 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).