BVA9505250 DOCKET NO. 93-11 542 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an increased disability rating for limitation of motion of the lumbar spine, which is currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Theresa M. Catino, Associate Counsel INTRODUCTION The veteran served on active military duty from October 1948 to October 1952 and from June 1954 to January 1959. In the substantive appeal, which was received at the regional office (RO) in January 1991, the veteran appeared to raise the issue of entitlement to a total rating based on individual unemployability. Furthermore, in an April 1993 statement, the veteran's representative appeared to raise the issue of whether new and material evidence has been submitted to reopen the claim of entitlement to service connection for a bilateral knee disability. These issues are not inextricably intertwined with the current appeal and are referred to the RO for appropriate action. REMAND The veteran's service-connected back disability is defined as limitation of motion of the lumbar spine. He is currently evaluated as 40 percent disabled for this disability under Diagnostic Code 5292. A 40 percent rating under Code 5292 indicates that the limitation of motion of the veteran's lumbar spine is severe and represents the highest evaluation allowable under this Code. See 38 C.F.R. Part 4, 4.71a, Code 5292 (1994). The veteran may receive a higher schedular rating for his back disability if the medical evidence demonstrates symptoms which are consistent with pronounced intervertebral disc syndrome, pursuant to Diagnostic Code 5293, or with ankylosis, pursuant to Diagnostic Codes 5286 and 5289. In August 1991, the veteran underwent a VA examination of his back. This examination included orthopedic and neurological evaluations. However, neither examiner had access to the veteran's claims file prior to, or during the examination. The examiner conducting the neurological examination stated that he deferred making a diagnosis and expressing an opinion regarding the degree of impairment until after he was able to obtain the claims folder and other medical information including radiologic and electrodiagnostic studies and to re-examine the veteran. The examiner believed that the radiologic and electrodiagnostic studies were contained in the absent claims folder. Significantly, however, the claims file, including all available medical records, was not referred to the examiner. Consequently, a medical opinion regarding the degree of neurological impairment resulting from the veteran's service-connected back disability was never obtained. In an April 1993 statement, the veteran's representative also pointed out that the neurologist never received the claims folder and was therefore unable to complete his examination and to offer an opinion of any neurological abnormalities that the veteran may have concerning his back. Moreover, the examiner conducting the neurological examination did not discuss the presence or absence of persistent symptoms compatible with sciatic neuropathy, characteristic pain, demonstrable muscle spasm, absent ankle jerk, or a clear description of any other neurological findings appropriate to the site of the diseased disc and the degree of relief that the veteran has from these symptoms. A medical discussion of these symptoms is necessary prior to the consideration of a 60 percent rating under Diagnostic Code 5293. See 38 C.F.R. Part 4, § 4.71a, Code 5293 (1994). In addition, the VA examiner conducting the orthopedic examination did not indicate whether any ankylosis was present. See 38 C.F.R. Part 4, § 4.71a, Codes 5286 and 5289 (1994). Recently, the United States Court of Veterans Appeals (Court) has upheld the provisions of 38 C.F.R. Part 4, § 4.2, which provide that, if an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes. Ardison v. Brown, 6 Vet.App. 405, 407 (1994); Abernathy v. Principi, 3 Vet.App. 461, 464 (1992). In the present case, the VA examination conducted in August 1991 is inadequate for the purposes of evaluating the nature and extent of the veteran's service-connected back disability. The Board of Veterans' Appeals (Board) notes that at the personal hearing conducted before a hearing officer at the RO, the veteran testified that he now experiences pain and severe numbness radiating from the base of his spine down the back of his legs, severe back pain, limitation of motion of his back, and cramps in his legs. Hearing transcript at 2. Moreover, in a December 1992 statement, the veteran asserted that the August 1991 VA examination inadequately described the severity of these symptoms. In April 1993 and January 1995 statements, the veteran's representative also contended that this examination was not thorough. The representative specifically requested that the case be remanded to accord the veteran a complete and thorough examination of his service-connected back disability. The Board concludes that further assistance to the veteran is required. Accordingly, the case is REMANDED to the RO for the following: 1. The veteran should be contacted and requested to furnish a complete list of all medical personnel and facilities from which he has received treatment for his service-connected back disability since October 1987. After obtaining the appropriate releases from the veteran where necessary and to the extent these records are not in the claims folder, the health care providers should be contacted and requested to provide all treatment records in their possession pertaining to the veteran. If these records are unavailable, that fact should be annotated in the claims folder. Any available records should be associated with the claims folder. 2. Following the above, the veteran should be accorded examinations by a VA orthopedist and a VA neurologist to determine the nature and extent of his service-connected back disability. The examinations should be conducted in accordance with the diagnostic procedures outlined in the VA Physician's Guide for Disability Evaluation Examinations. All necessary tests and X-rays should be conducted, and the examiners should review the results of any testing prior to completion of the reports. The examination reports should include a detailed account of all manifestations of the disability found to be present. The orthopedist should address the presence or absence of pain, ankylosis (favorable or unfavorable), any limitation of motion, instability, and weakness. 3. It is essential that the neurologist discuss the presence or absence of symptoms compatible with sciatic neuropathy (and whether these symptoms are persistent), characteristic pain, demonstrable muscle spasm, absent ankle jerk and provide a clear description of any other neurological findings appropriate to the site of any diseased discs and the degree of relief that the veteran has from these symptoms. Furthermore, both the orthopedist and the neurologist should be asked to express opinions as to whether any abnormalities found on examination are related in any way to the veteran's service-connected back disability. The claims folder and a copy of this remand must be made available to and reviewed by the examiners prior to the examinations. 4. Thereafter, the RO should formally adjudicate the issue of entitlement to an increased rating for the veteran's service-connected back disability. The RO should consider rating this disability under Diagnostic Codes 5286, 5289, and 5293. Following completion of these actions, and, if the decision remains unfavorable, the veteran and his representative should be provided with a supplemental statement of the case and afforded a reasonable period of time in which to respond. Thereafter, the case, in accordance with the current appellate procedures, should be returned to the Board for completion of appellate review. The purpose of this REMAND is to obtain clarifying evidence. No action is required of the veteran until further notice is issued. JOHN E. ORMOND Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. 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) (1994).