Citation Nr: 9827021 Decision Date: 09/10/98 Archive Date: 09/17/98 DOCKET NO. 95-00 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to a disability evaluation in excess of 10 percent for osteoarthritis of the lumbar spine. 2. Entitlement to a disability evaluation in excess of 10 percent for osteoarthritis of the thoracic spine. 3. Entitlement to a disability evaluation in excess of 10 percent for osteoarthritis of the cervical spine. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD William W. Berg, Counsel INTRODUCTION The veteran served on active duty from October 1946 to May 1947 and from December 1948 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Fall, South Dakota. Service connection had been in effect for osteoarthritis of the cervical and lumbar spine, which had been rated 20 percent disabling under Diagnostic Code 5003 since November 1970. However, following the veteran’s claim for increase received in May 1994, the RO in June 1997 separately evaluated the cervical and lumbar spine osteoarthritis as 10 percent disabling each, on the basis of slight limitation of motion of those spinal segments, under Codes 5003-5290 and 5003-5292. In addition, the RO granted service connection for osteoarthritis of the thoracic spine and assigned a 10 percent rating under Code 5003-5291. A combined service-connected evaluation of 30 percent was assigned from May 1994. REMAND In June 1998, the veteran’s representative submitted medical evidence pertinent to the issues on this appeal. The evidence, which consisted of the May 1998 written opinion of Dr. Bash, a board certified radiologist, was received less than 90 days following certification of this case to the Board for appellate consideration. Dr. Bash essentially maintains that the veteran has spinal stenosis as a result of his service-connected osteoarthritis of the cervical and lumbar spine that is causing neurologic symptoms in the upper and lower extremities, possibly including a dull constant ache between the shoulder blades and bowel seepage. Although the RO referred to spinal stenosis in the June 1997 rating decision, it does not appear to have considered the neurologic implications under Code 5293 for evaluating these disorders (despite the fact that the criteria for evaluating intervertebral disc syndrome under Code 5293 were included in the supplemental statement of the case issued to the veteran and his representative in June 1997). Dr. Bash also indicated that any records generated since 1994 that contain current medical evidence would be helpful in determining the extent of neurologic residuals of the service-connected disabilities. This appeal is complicated by the fact that service connection for numbness and coldness from the waist down, and bowel seepage, was denied by a rating decision dated in February 1995. The veteran and his representative were informed of this determination in March 1995, but a timely appeal was not initiated, although the representative referred to these problems in a VA Form 1-646 received in March 1997. The February 1995 rating determination therefore became final. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (1997). However, Dr. Bash’s submission appears in part to constitute an attempt to reopen that claim. The issue of whether new and material evidence has been received to reopen the previously and finally denied service connection claim should be decided by the RO prior to final adjudication of the claims for increased ratings for osteoarthritis of the lumbar and thoracic spine. The veteran’s representative in June 1998 requested that the case be remanded to the RO for consideration of Dr. Bash’s opinion. Initial RO consideration of the evidence was not waived. Under the circumstances of this case, the Board is of the opinion that this matter must be remanded to the RO for initial consideration of the May 1998 medical opinion. See 38 C.F.R. § 20.1304(c) (1997). During the pendency of this appeal, moreover, the United States Court of Veterans Appeals decided DeLuca v. Brown, 8 Vet. App. 202 (1995). In DeLuca, the Court held that in evaluating a service-connected joint disability (involving the shoulder), the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. The Court held that the pertinent diagnostic code (5201) did not subsume 38 C.F.R. §§ 4.40 and 4.45 and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 did not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. The Court remanded the case to the Board to obtain a medical evaluation that addressed whether pain significantly limits functional ability during flare-ups or when the arm is used repeatedly over a period of time. The Court also held that the examiner should be asked to determine whether the pertinent joint exhibited weakened movement, excess fatigability or incoordination; if feasible, these determinations were to be expressed in terms of additional loss of range of motion due to any weakened movement, excess fatigability or incoordination. In view of the above evidence, the Board finds that the case should be REMANDED to the RO for the following action: 1. The RO should contact the veteran and request that he identify specific names, addresses, and approximate dates of treatment for all health care providers, private and VA, from whom he has received treatment since January 1994 for the disabilities at issue. When the requested information and any necessary authorization have been received, the RO should attempt to obtain copies of all pertinent records which have not already been obtained. 2. Thereafter, the RO should schedule the veteran for VA orthopedic and neurologic examinations to determine the current extent and severity of the service-connected osteoarthritis of the lumbar, thoracic and cervical spine. All necessary tests and studies should be accomplished, and all clinical manifestations should be reported in detail, including any neurologic residuals found to result from the service- connected osteoarthritis. To this end, the examiners are requested to review Dr. Bash’s May 1998 opinion, in addition to the other evidence of record. The examiners should also identify the limitation of activity imposed by the disabling condition, viewed in relation to the medical history, considered from the point of view of the veteran working or seeking work, with a full description of the effects of disability upon his ordinary activity. An opinion should be provided regarding whether pain significantly limits functional ability during flare-ups or with extended use. Voyles v. Brown, 5 Vet. App. 451, 453 (1993). It should be noted whether the clinical evidence is consistent with the severity of the pain and other symptoms reported by the veteran. The examiner also should indicate whether the affected joint exhibits weakened movement, excess, fatigability, or incoordination. Lathan v. Brown, 7 Vet. App. 359 (1995); DeLuca v. Brown, 8 Vet. App. 202 (1995). An opinion also should be provided regarding the likelihood that neuropathy of the lower extremities is related, directly or otherwise, to the service-connected disability of the spine. 3. The claims file, including a copy of this remand, should be made available to the examiners before the examination, for proper review of the medical history. The examination report is to reflect whether such a review of the claims file was made. Any opinion expressed should be accompanied by a written rationale. 4. After the development requested above has been completed to the extent possible, the RO should again review the record. The RO should adjudicate the issue of whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for numbness and coldness from the waist down and for bowel seepage due to osteoarthritis of the spine. The RO should also readjudicate the claims for increased ratings currently in appellate status. If any benefit for which a notice of disagreement has been received remains denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. WAYNE M. BRAEUER Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1997). - 2 -