Citation Nr: 0001199 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 96-37 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a disability rating greater than 20 percent for the period from July 1990 to August 1993 for degenerative disc disease, L3-4-5. 2. Entitlement to a disability rating greater than 40 percent for the period from August 1993. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Vito A. Clementi, Counsel INTRODUCTION The appellant had active duty from July 1959 to July 1963. This matter was last before the Board of Veterans' Appeals (Board) in February 1999, on appeal from a May 1996 rating decision of the Portland, Oregon Department of Veterans Affairs (VA) Regional Office (RO). Upon its last review, the Board remanded the appellant's rating claim for compliance with the then recent ruling of the United States Court for Veterans Claims (formerly, the United States Court of Veterans Appeals and hereafter "Court") in Fenderson v. West, 12 Vet. App. 119 (1999). In February 1998, the appellant withdrew his then pending request for non-service-connected pension benefits from appellate consideration. This matter is therefore not before the Board. The Board notes that in various correspondence, the appellant has alluded to the development of a depressive disorder that he alleges has been caused or worsened by his service- connected back disability. The appellant has not submitted a formal claim of entitlement to service connection for a psychiatric disorder. This matter is therefore referred to the RO for appropriate action. REMAND The appellant in essence is challenging the January 1996 RO rating decision which implemented the Board's November 1995 decision which granted the appellant service connection for a low back disability. The RO assigned a 20 percent disability rating from July 12, 1990, the date that the appellant filed a reopened claim of entitlement to service connection for a low back disability and a 40 percent disability rating from August 5, 1993, the date of a VA examination report which showed that the back disability had increased in severity. The appellant essentially contends that the severity of his disability has always been greater than was reflected in the January 1996 RO. He further contends that under the law, he is entitled to a disability rating for neurological damage, separate from his musculoskeletal disorder. Further, the appellant argues that his service-connected back disorder has rendered him totally disabled and individually unemployable. Having carefully reviewed all of the evidence pertinent to the appellant's claims in light of his contentions, the Board is of the opinion that the medical evidence of record remains insufficient for appellate review and must again remand the claims. As was noted in the Board's February 1999 remand, the appellant's claims have been in continuous appellate status since their original assignment of service-connection, and the evidence to be considered therefore includes all evidence proffered in support of the reopened claim. Fenderson, supra.; see also Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). In light of the appellant's contentions and the development of the record, the Board will briefly review the evidence of record presently adduced. Factual background As is noted above, the record reflects that by rating decision dated in November 1995, the Board granted entitlement to service connection for a low back disability, upon the appellant's July 12, 1990 request to reopen his previously denied claim. Records of treatment afforded by J.S.S., M.D. were received. In sum, they reflect that in July 1990, the appellant complained of back pain, and that he was "currently on disability retirement because of severe degenerative arthritis of his left knee which [would] eventually require a knee prosthesis." He was then noted to be approximately 100 pounds over his ideal weight. In a September 1990 record, Dr. S. noted that a recent computerized tomography study detected disc disease at L4-5, but that the condition was "certainly not severely disabling enough to suggest surgical intervention," and that the appellant's "other problems" were of greater import. The appellant underwent a VA physical examination in August 1993. He was noted to be "quite obese," and weighed closed to 300 pounds. The appellant was six feet, two inches tall. He was noted to walk "very protectively," and used a cane due to a disability of the knees. Lumbar range of motion was 40 degrees flexion and ten degrees extension. Lateral bending was 15 degrees to the right and ten degrees to the left. Rotation was to ten degrees, bilaterally. Reflexes at the knee were 1+ bilaterally and equal. Ankle reflexes were 2+ and equal. The examiner found no weakness of the lower extremities that could be attributed to his back condition, and he did not have sensory loss attributable to his back. In a January 1995 report authored by K.J., M.D., the physician reported that a sensory examination indicated that pinprick testing was intact throughout, with the exception of the area over the left lateral calf, "somewhat suggestive" of an L5 distribution. The appellant underwent a VA physical examination in May 1996. He reported having low back pain since his discharge from active duty. It was noted that the appellant had bilateral knee problems resulting from civilian employment and a right ankle fracture. He reported that he could sit for about 15 minutes, walk for about 15 minutes and that these activities were limited by pain in his back. The appellant reported that he did not operate a vehicle and that he "lost his license." He reported that he had chronic low back pain, and occasional bilateral thigh numbness, without pain. The examiner commented that the appellant's right ankle pain and restricted motion were related to a previous fracture. He reported that the lower extremity numbness was a part of the appellant's back disorder, and it was "the typical feeling of numbness or discomfort that radiate[d] out from a chronic low back problem." In June 1996, the appellant underwent a computerized tomographic study of the lumbosacral spine, upon referral by Dr. M.B.S. It was reported that the appellant complained of numbness in both lower legs when standing or walking. In sum, the findings of the study indicated disk space narrowing at L4-5, with evidence of osteophyte formation throughout the lumbar spine. There was no evidence of focal disk protrusion or extrusion, and no spinal canal stenosis seen. The appellant's back was noted to have "mild to moderate changes affecting the neural foramina on the left at L4-5 and L5- S1." The vertebral bodies appeared intact, and there was no evidence of spondylolysis. The appellant underwent electrodiagnostic testing in June 1997, conducted by P.J., M.D. It was reported that about five years earlier, the appellant developed numbness over the left thigh, lateral calf and lateral foot that had become persistent. The appellant was not aware of any weakness. Dr. P.J. reported that his testing then indicated findings probably indicative of a motor sensory peripheral neuropathy, most likely attributable to diabetes. Upon clinical examination in July 1997, Dr. P.J. withdrew his earlier assessment that the appellant's radiculopathy was due to diabetes, and opined that the symptom was related to the lumbar disease. In response to the Board's February 1999 remand, the appellant underwent a VA physical examination in May 1999. The appellant was reported to have "subjective" feelings of weakness in both thighs and impaired coordination of the left lower extremity, for which he was using a leg brace. On physical examination, the examiner noted that the appellant limped, which was attributed to left lower extremity numbness. The appellant was noted to have decreased sensation in both legs. The examiner stated that the appellant's lumbar nerve roots were "probably okay". However, in an addendum, the examiner diagnosed to appellant to have polyradiculopathies of L5 and S1. In November 1999, the appellant proffered an October 1999 letter from J.K.L., M.D., and an October 1999 report authored by L.E.J. In her report, Dr. J.K.L. observed that the appellant complained of shooting, excruciating pain in the bilateral lumbosacral region and numbness that radiated into the heel. She noted the appellant's report that these symptoms were present 24 hours a day, and there was no patter of variation in pain intensity. She observed that the appellant was diagnosed to have diabetes mellitus and hypertension, in addition to degenerative disc disease. Discussion At all times pertinent to this matter, the appellant's disability has been rated under 38 C.F.R. § 4.71a, Diagnostic Code 5293. Under this provision, a 60 percent evaluation would be appropriately assigned for pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. As was noted in the Board's February 1999 remand, under the Court's ruling in Bierman v. Brown, 6 Vet. App. 125 (1994), the assignment of a separate disability rating for a neurological disability under 38 C.F.R. § 4.124a may be appropriate when its manifestations are distinct from low back symptoms (i.e., that is neither duplicative or overlapping) attributable to the musculoskeletal disorder. It is clear from the recitation of evidence above that these is some question concerning the nature and severity of the appellant's service-connected disability, particularly in light of coexisting non service-connected disabilities such as diabetes mellitus. The medical evidence has been conflicting and unclear as to this matter, as indicated by the June and July 1997 statements of Dr. P.J. It was to clarify the medical ambiguity in the case that the Board remanded the case to the RO in February 1999. In its February 1999 remand, it directed that the appellant be afforded "diagnostic testing deemed necessary to render a clinically supported diagnosis and/or assessment of severity" under the precedent cited above. In his May 1999 examination report, the VA orthopedic examiner stated that the appellant's nerve roots were "probably okay," but that a neurologic examination was then pending, and that he would defer to its results with regard to the diagnosis of the appellant's neurological disorder. In July 1999, a VA neurological examiner reported that she had reviewed previous studies from June 1996 and from May and July 1997, and diagnosed the appellant to have "polyradiculopathies." No clinical neurological testing was then conducted, and no apparent medical scrutiny was undertaken with a view towards resolution of whether the appellant's neurological deficits of the lower extremities were due to his service-connected back disability and, if so, whether the appellant had separate neurological symptoms that would warrant the assignment of a separate disability rating under the Court's ruling in Bierman. In observing that he would "defer" to the neurological examiner, the orthopedic examiner did not provide any information as to the nature or degree of the neurological symptoms, as separate from the appellant's degenerative disc disease. Thus, the medical evidence of record indicates that the appellant may have neurological symptoms of the peripheral system, separate from his presently service-connected degenerative disc disease of the lumbar spine, the cause for which symptoms remains unclear. Because the resolution of this issue is inextricably intertwined with that of the appellant's disability rating, the Board must defer resolution of the appellant's remaining claims, including his claim of a total disability evaluation based upon individual unemployability, until the requisite medical examination and adjudication is conducted. Although in its Supplemental Statement of the Case, the RO stated that "consideration has been given to" 38 C.F.R. §§ 4.40 and 4.45 and the Court's decisions in Bierman and DeLuca v. Brown, 6 Vet. App. 321 (1993), there is no discussion of these provisions or precedent in the RO's decision, and the Board cannot ascertain the bases of the RO's decisions with regard to these cases or regulatory provisions. The Board is cognizant in this regard that the appellant has expressed frustration with the delay in the resolution of this matter, and a sometimes unwillingness to participate in further inquiry. However, it is the Board's responsibility to assess the probative weight to be assigned to the evidence of record, and the Board accordingly must ensure that it obtains a complete picture of a claimant's disorder in order to fulfill that responsibility. See Littke v. Derwinski, 1 Vet. App. 90 (1990); Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121 (1991). Where the record before the Board is inadequate to render a fully informed decision, a remand to the RO is required in order to fulfill the statutory duty to assist. See Ascherl v. Brown, 4 Vet. App. 371, 377 (1993). This matter is REMANDED for the following: 1. The RO should contact the appellant and his representative and ascertain if the appellant has received any VA, private, or other medical treatment which is not evidenced by record. The appellant should be provided with the necessary authorizations for the release of any treatment records not currently on file. The RO should then obtain these records and associate them with the claims folder. 2. The RO should afford the appellant an appropriate VA examination, specifically to determine the nature and extent of impairment caused by his service- connected low back disability. The appellant's claims folder and a copy of this remand must be made available to and reviewed by the examining physician(s) in conjunction with the examination(s). All pertinent symptomatology and findings should be reported in detail. In particular, the nature of the lower extremity neurological problems, and their relationship, if any, to the service-connected low back disability should be described in detail. All diagnostic testing deemed necessary to render a clinically- supported diagnosis and/or assessment of severity should be administered. The report of the examination, including the reports of all completed tests or special studies, should thereafter be associated with the appellant's claims folder. 3. After the development requested has been completed, the RO should review the appellant's claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented, including the return of an inadequate examination report to the responsible physician. 4. After completion of the above, the RO should readjudicate the appellant's claim seeking an increased rating for the service-connected low back disorder with consideration given to all of the evidence of record, including any additional medical evidence obtained by the RO pursuant to this remand. The law, regulations and Court decisions discussed by the Board above, in particular DeLuca and Bierman, should be considered by the RO in evaluating the appellant's claim. Further, consideration of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1) should be addressed on readjudication as well. If the appellant's claim for an increased rating is denied, the appellant 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 RO and the appellant are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the United States Court of Veterans Appeals (Court). The Court has stated that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). The RO and the appellant are further advised that the appellant and/or his representative may furnish additional evidence and argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). The appellant is advised that no action is required of him until further notice is obtained by VA. However, the Board again observes that the appellant has maintained that all evidence necessary to adjudicate his claim is currently of record. Citing privacy concerns, the appellant advised the RO by letter dated in March 1998 that he would not sign appropriate authorization forms that would enable the RO to secure certain requested updated medical records. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Veterans Appeals for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1998) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. Barry F. Bohan Member, Board of Veterans' Appeals CONTINUED ON NEXT PAGE Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999). The appellant specifically waived consideration of this evidence by the RO, pursuant to 38 C.F.R. § 20.1304 (1999). The remand will afford the RO the opportunity to review this evidence in any event.