Citation Nr: 1808769 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 13-07 851 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent prior to October 15, 2010, in excess of 10 percent from December 1, 2010, and in excess of 20 percent from June 1, 2013, for service-connected degenerative arthritis with scoliosis of the thoracolumbar spine ("thoracolumbar spine disability") 2. Entitlement to an evaluation in excess of 10 percent for service-connected degenerative arthritis of the cervical spine ("cervical spine disability'). 3. Entitlement to an initial evaluation in excess of 10 percent prior to October 15, 2010, a compensable evaluation from October 15, 2010, and in excess of 10 percent from March 11, 2013, for service-connected radiculopathy of the left lower extremity. 4. Entitlement to an initial rating in excess of 10 percent for service-connected radiculopathy of the right lower extremity. 5. Entitlement to an initial compensable rating for service-connected scar, residual of lumbar laminectomy procedures associated with the thoracolumbar spine disability. REPRESENTATION Appellant represented by: Christopher Loiacono, Agent ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran had active duty service from April 1987 to April 2007. This matter comes before the Board of Veterans' Appeal (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, that continued 10 percent disabling ratings for service-connected thoracolumbar and cervical spine disabilities. Additionally, in July 2013, the RO granted ratings for the thoracolumbar spine as follows: temporary 100 percent effective October 15, 2010; 10 percent from December 1, 2010; temporary 100 percent from April 25, 2013; and 20 percent from June 1, 2013. The same decision granted service connection for radiculopathy of the left lower extremity and assigned ratings as follows: 10 percent from June 29, 2010; noncompensable from October 15, 2010; and 10 percent from June 1, 2013. The RO also granted service connection for radiculopathy of the right lower extremity rated 10 percent disabling effective May 18, 2013, and scar, residual of the lumbar laminectomy rated noncompensable effective October 15, 2010. The Veteran filed a notice of disagreement in August 2013 with the initial ratings assigned for bilateral lower extremity radiculopathy and the effective date assigned, as well as the effective date of the 20 percent disabling rating for the thoracolumbar spine disability. In response, the RO issued a statement of the case in September 2015 and characterized additional matters on appeal as entitlement to an effective date prior to June 1, 2013, for the grant of an evaluation of 20 percent disabling rating for thoracolumbar spine disability, an effective date prior to March 11, 2013, for the grant of a 10 percent disabling rating for radiculopathy of the left lower extremity, and an effective date prior to May 18, 2013, for the grant of a 10 percent disabling rating for radiculopathy of the right lower extremity. However, because the Veteran's appeal originated from the January 2010 rating decision that continued the 10 percent rating for the thoracolumbar spine disability and he is presumed to be seeking the maximum benefit allowed by law and regulation, it follows that such the claim remains in controversy as less than the maximum benefit available is awarded See AB v. Brown, 6 Vet. App. 35 (1993) (noting that, in a claim for an increased disability rating, the claimaint will generally be). Further, as radiculopathy of the bilateral lower extremities is the type of neurological impairment contemplated by 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, it is part and parcel of the thoracolumbar spine disability on appeal. Thus, the issues on appeal do not include the question of entitlement to an earlier effective date as delineated above. The claims are noted on the title page. The issue of increased evaluation for thoracolumbar spine disability excludes the periods of temporary total evaluations assigned. In February 2017, and again in March 2017, the Veteran withdrew his request for hearing before the Board; consequently, there are no outstanding hearing requests of record. 38 C.F.R. § 20.704(d). The Veteran submitted additional private medical evidence in December 2016, November 2017, and January 2018 with a waiver of initial RO review and thus, it has been considered in preparation of this Remand. 38 U.S.C. §38 C.F.R. § 20.1304(c). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Board finds that additional development is needed before a final determination may be made on the issues on appeal. Regarding the thoracolumbar spine disability, cervical spine disability, bilateral lower extremity radiculopathy, and scar, the Veteran was last provided a VA examination in April 2016, which is fairly recent and contemporaneous in time. Nonetheless, subsequent to the April 2016 VA examination, the Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. After reviewing the VA spine examinations of record, the Board finds that they are incomplete and require further medical guidance, in light of the recent holding in Correia. Moreover, additional medical evidence was added to the record after the 2016 examinations, to include evidence that the Veteran had a spinal cord stimulator generator implanted in September 2017. As the previous VA spine examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, and as the new evidence suggests a possible worsening of the disabilities at issue and it is essential that each disability be viewed in relation to its history, a new examination is necessary to decide the claims. It also appears the appellate record is incomplete. The most recent VA outpatient treatment records associated with the virtual record are dated in July 2015. The Board will remand to obtain updated and/or outstanding records. See 38 C.F.R. § 3.159 (c)(2) (2017). Finally, subsequent to the September 2015 supplemental statement of the case and September 2015 statement of the case, additional records were added to the evidence of record, to include, but not limited to VA outpatient treatment records dated between November 2014 to July 2015 and the April 2016 reports of VA examination. A supplemental statement of the case was not issued after the additional evidence was developed and this procedural defect must be cured. Id. Accordingly, the case is REMANDED for the following action: 1. The RO must secure any outstanding, relevant VA medical records, to include those dated from July 2015 to the present. All attempts to secure this evidence must be documented in the electronic record by the RO and VA facilities must provide negative responses if no records are available. 2. After receipt of all additional treatment records, the Veteran must be afforded VA examination to determine the severity of his service-connected thoracolumbar, cervical spine, bilateral lower extremity radiculopathy, and scar disabilities. The electronic claim file must be made available to the examiners, and the examiners must specify in the examination report that these records have been reviewed. Any indicated diagnostic tests and studies must be accomplished. The examiner must use the most recent Disability Benefits Questionnaire for musculoskeletal disabilities, which complies with the mandates in Correia. All pertinent symptomatology and findings necessary to rate this disorder must be reported in detail. Thoracolumbar Spine, Cervical Spine, and Bilateral Lower Extremity Radiculopathy: (i) The examiner must determine the active range of motion of the Veteran's thoracolumbar and cervical spine, in degrees, by use of a goniometer noting by comparison the normal range of motion of the lumbar spine. This information must be derived from testing for pain on both active and passive motion, in weight-bearing and non-weight bearing. The examination report must confirm that all such testing has been made and reflect those testing results. (ii) The examiner must also perform active and passive repetitive range of motion testing. If pain on motion is shown, the examiner must state at what degree the pain begins. The examiner must also state whether there is weakened movement, excess fatigability, or incoordination attributable to the service-connected thoracolumbar and cervical spine disabilities expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. Additionally, an opinion must be stated as to whether any pain found in the thoracolumbar and cervical spine could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. (iii) The examiner must also specifically state whether there is any intervertebral disc syndrome and if so, state the total duration of incapacitating episodes. (iv) The examiner must specifically state whether any neurologic manifestations found, other than the associated left and right lower extremity radiculopathy, are caused by the Veteran's service-connected thoracolumbar spine and/or cervical disability. The examiner must also specifically state whether any neurologic manifestation found, including left and right lower extremity lumbar radiculopathy, results in complete or incomplete paralysis of any nerve. The specific nerves involved must be identified. If incomplete paralysis is found, the examiner must state whether the incomplete paralysis is best characterized as mild, moderate, or severe; with the provision that wholly sensory involvement should be characterized as mild, or at most, moderate. Scar, Residual of Lumbar Laminectomy (v) Examination findings pertinent to the Veteran's scar should be reported to allow for application of VA rating criteria for the skin under 38 C.F.R. § 4.118. The examiner must document the number of scars and length/area covered. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. The examination reports must be reviewed to ensure they are in complete compliance with the directives of this remand. If a report is deficient in any manner, the RO must implement corrective procedures. 4. Once the above action has been completed, and any other development as may be indicated by any response received as a consequence of the actions taken above, the RO must readjudicate the claims on appeal, to include consideration of all evidence received since the September 2015 supplemental statement of the case and September 2015 statement of the case. If upon completion of the above action, the claims remain denied, the case should be returned to the Board after compliance with appellate procedures. 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 appeal must be afforded expeditious treatment. The law requires that all issues 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). _________________________________________________ E. I. VELEZ 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).