Citation Nr: 0007000 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 98 14 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE The propriety of the initial evaluation for the veteran's service-connected osteoarthritis of the lumbar spine, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. L. Wright, Counsel INTRODUCTION The veteran had active service from April 1944 to December 1945. This appeal arises from a May 1998 rating decision of the Columbia, South Carolina, Regional Office (RO) which granted service connection for osteoarthritis of the lumbar spine. This award was based on a Board of Veterans' Appeals (Board) decision issued in March 1998. The service-connected lumbar spine disability was evaluated as 10 percent disabling, effective January 31, 1992. This evaluation was appealed by the veteran. In a decision of March 1998, the Board confirmed the 30 percent rating assigned the service-connected right knee disability, status post replacement, with arthritis, and assigned a separate 20 percent rating for instability of the right knee. While initially the RO incorrectly listed the separate rating as 10 percent for "arthritis," corrective action was later taken to reflect the Board's favorable action. The veteran has written that he disagrees with the "10 percent" rating assigned for arthritis of the right knee. The Board points out, for his benefit, that currently his right knee has 2 separate evaluations: 30 percent for replacement and arthritis; and 20 percent for instability. In the event he is dissatisfied with these ratings, he is invited to file a claim for increase. Finally, the service representative has raised the issue of entitlement to a claim for a total rating due to individual unemployability, asserting that the veteran, who is unemployed, meets the schedular criteria of 60 percent for the assignment of such rating (disability affecting a single body system) pursuant to the provisions of 38 C.F.R. § 4.16 (a) (1999). This matter has not been developed for appellate review and is referred to the attention of the RO for appropriate action. REMAND The last U. S. Department of Veterans Affairs (VA) orthopedic examination of record to evaluate the veteran's service- connected low back disability was conducted in August 1998. Regarding the range of motion in the veteran's lumbar spine, the examiner wrote the following: Active range of motion of the lumbar sacral spine is limited in flexion secondary to pain. The actual measurements of this motion were not provided. Without such medical findings, the Board is unable to evaluate this disorder under the criteria found at 38 C.F.R., Part 4, Diagnostic Code 5292 (1999) (limitation of motion in the lumbar spine). According to the U. S. Court of Appeals for Veterans Claims (Court), the regulations at 38 C.F.R. §§ 4.40, 4.45, allow increased evaluation of a joint disability evidencing increased severity resulting from pain on motion, fatigability, and/or repetitive use. See DeLuca v. Brown, 8 Vet. App. 202 (1994). As the examiner of August 1998 has determined that the veteran has limitation of motion in the lumbar spine due to pain, another medical examination is required in order to determine this limitation measured in degrees. In its March 1998 decision, the Board granted service- connection for a low back disorder. Review of the record reveals that in addition to arthritis of the lumbar spine, which has existed, according to the record, for several decades, the veteran has more recently been diagnosed as having lumbar spinal stenosis and degenerative disc disease. In effectuating the Board's grant of service connection, the low back disorder was characterized by the RO as being osteoarthritis of the lumbar spine. Neither the rating decision nor the statement of the case reflects consideration of rating schedule criteria applicable to disc pathology. Such omission suggests that neither lumbar stenosis nor degenerative disc disease is considered to be part and parcel of the service-connected low back disorder. On the other hand, the veteran was found entitled to temporary total ratings based on hospitalizations primarily for lumbar spinal stenosis. This matter requires clarification, so that the veteran's service-connected low back disorder can be properly rated. In addition, the RO's attention is also directed to the Court's recent decision in Fenderson v. West, 12 Vet. App. 119 (1999), that held in claims dealing with the original rating of a service-connected disability, the veteran may be assigned separate evaluations for separate periods of time based on the facts found in the case. In other words, the veteran is entitled to consideration of "staged ratings" regarding the evaluation of his low back disability. While on remand, the RO should determine if the veteran is entitled to staged ratings. Under the circumstances, the undersigned finds that additional development is required, and the case is REMANDED to the RO for the following action: 1. The RO should contact the veteran and request him to provide the names and addresses of all healthcare providers who have treated his low back disability from August 1998 to the present time. In the event he is able to identify any medical records relating to his lumbar spine disorder during the period from January 1992 until August 1998, which are not already of record, he should provide the names and addresses of the medical care providers so that these records may be assembled as well. The veteran should be requested to sign and submit appropriate forms giving his consent for the release to the VA of any private medical records. Treatment records from any identified VA facility should also be obtained. When the above requested information and consent forms are received, the RO should contact the named facilities and/or physicians and request them to furnish legible copies of all records of treatment. Once obtained, all records must be associated with the claims folder. 2. Following completion of the above development, the veteran should be afforded a VA orthopedic examination. The purpose of this examination is to determine the severity of the veteran's service-connected disorder, now classified as osteoarthritis of the lumbar spine, as well as assist in the determination of the extent of the service-connected back disorder. Such tests as the examining physician deems necessary should be performed. The clinical findings and reasons upon which the opinions are based should be clearly set forth. If the examiner is unable to form an opinion on any of the requested findings, he or she should note the reasons why such an opinion can not be made. The claims folder must be made available to the examining physician prior to the examination so that he or she may review pertinent aspects of the veteran's medical history. The examiner must be given a copy of this remand, in its entirety. The examiner must express opinions for the record on each of the following: >What is the range of motion in the veteran's lumbar spine? The examiner should make clear on the examination report what is considered the normal range of motion for these joints. >Does the veteran's lumbar spine exhibit weakened movement, excess fatigability, or incoordination attributable to his service- connected disability. If feasible, these determinations should be expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. >Does pain on motion of the veteran's lumbar spine limit functional ability during flare-ups or when these joints are used repeatedly over a period of time. This determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. >Does the veteran's low back exhibit muscle spasm, loss of lateral motion, osteoarthritis of the lumbar spine, listing of the whole spine to the opposite side, positive Goldthwaite's sign, narrowing or irregularity of his lumbar joint spaces, or abnormal mobility on forced motion? >Does osteoarthritis of the lumbar spine produce any neurological symptoms and, if so, describe such symptoms? >To what degree does the veteran's lumbar spine disability have an effect on the veteran's social and industrial capacity? The degree of any social and industrial impairment should be specified and a description indicating how the veteran is impaired should be provided. >Can the symptoms attributable to the lumbar spinal stenosis and degenerative disc disease be distinguished from those attributable to osteoarthritis? If so, please so distinguish. 3. Thereafter, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examination does not include all opinions requested, appropriate corrective action is to be implemented. 4. Following completion of this action, the RO should review the evidence and determine whether the veteran's claims may now be granted. In this regard, the RO should determine if the veteran is entitled to "staged" ratings since the date of the award of service connection for his low back disability. The RO should also make a determination on whether lumbar spine stenosis and/or degenerative disc disease is part and parcel of the already service-connected low back disorder. If necessary, a medical opinion should be secured to address this question. In the event that either or both are considered to be part of the service-connected disorder, symptoms attributable thereto should be considered in the evaluation. If not, the veteran and his representative should be fully apprised of that fact and be given the right to appeal. 5. If the determination remains adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case (that includes citation to all pertinent legal authority and a full discussion of the reasons and bases for each determination) and be afforded a reasonable opportunity to respond before the case is returned to the Board for further adjudication. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no further action until he is informed, but he may furnish additional evidence and argument while the case is in remand status. See Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). The purpose of this REMAND is to obtain additional information. No inference should be drawn regarding the final disposition of the claims as a result of this action. 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 Appeals for Veterans Claims 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. 1999) (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. N. R. ROBIN Member, Board of Veterans' Appeals 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).