Citation Nr: 0001855 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 92-23 188 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased evaluation for postoperative residuals of lumbar disc herniation, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant INTRODUCTION The veteran had active service from September 1970 to July 1976. The current appeal arose from a December 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The RO denied entitlement to an increased evaluation for postoperative lumbar disc herniation. In August 1994 the Board of Veterans' Appeals (Board) remanded the case to the RO for consideration of the veteran's claim of entitlement to a total disability rating for compensation purposes on the basis of individual unemployability (TDIU). The veteran presented testimony before a hearing officer at the RO in March 1997. A transcript of the testimony has been associated with the claims file. In October 1997 the RO affirmed the prior denial of entitlement to an increased evaluation for postoperative residuals of lumbar disc herniation, and denied entitlement to a TDIU. A notice of disagreement with the denial of a TDIU has not been filed by the veteran and this issue is not consider part of the current appeal. In June 1998 the Board remanded the case to the RO for the purpose of complying with the veteran's request for a hearing before a Member of the Board. The veteran failed to report for a videoconference hearing scheduled in October 1999, and the case has been returned to the Board for further appellate review. REMAND The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) 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. The veteran was last formally examined by VA in July 1997. Ranges of motion of the lumbar spine were noted to be limited due to pain. The appellant's service-connected disability of the back is rated under Diagnostic Code 5293 for intervertebral disc syndrome, and may be evaluated under Diagnostic Code 5292 for limitation of motion of the lumbar spine, and Diagnostic Code 5295 for lumbosacral strain. The VA General Counsel in a precedent opinion has held that diagnostic code 5293, for intervertebral disc syndrome, involves loss of range of motion and that consideration of the criteria under 38 C.F.R. §§ 4.40, 4.45 is applicable. VAOPGCPREC 36-97. The Court has held that diagnostic codes predicated on limitation of motion do not prohibit consideration of a higher rating based on functional loss due to pain on use or due to flare-ups under 38 C.F.R. §§ 4.40, 4.45, 4.59 (1999). The codes that may be applied in the veteran's evaluation for his back disability contemplate limitation of motion of the lumbar spine in evaluating his appeal for increased compensation benefits. The Board finds that the VA examination of July 1997 did not include a consideration of the criteria of 38 C.F.R. §§ 4.40, 4.45, 4.59 in assessing the nature and extent of severity of the service-connected disability of the back. The Court has held that where the evidence does not adequately evaluate the current state of the condition, VA must provide a new examination. Olsen v. Principi, 3 Vet. App. 480, 482 (1992) (Citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992)). As the Board noted earlier, the Court has further held that when a diagnostic code provides for compensation based upon limitation of motion, the provisions of 38 C.F.R. §§ 4.40, 4.45 must also be considered, and examinations upon which the rating decisions are based must adequately portray the extent of functional loss due to pain "on use or due to flare- ups." DeLuca v. Brown, 8 Vet. App. 202 (1995). Although the most recent examination of the veteran for VA purposes was to a certain extent thorough, specific findings relative to the requirements set forth in DeLuca, and 38 C.F.R. §§ 4.40, 4.45, 4.59 were not included in the examination report. Therefore, pursuant to VA's duty to assist the veteran in the development of facts pertinent to his claim under 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103(a) (1999), the Board will not decide the issue certified for appellate review pending a remand of the case to the RO for further development as follows: 1. The RO should contact the veteran and request that he provide the names, addresses, and approximate dates of treatment of all health care providers, VA and non-VA, inpatient and outpatient, who may possess additional records pertaining to treatment of his service- connected postoperative lumbar disc disease. After obtaining any necessary authorization or medical releases, the RO should obtain and associate with the claims file legible copies of the veteran's complete treatment reports from all sources identified whose records have not previously been secured. Regardless of the veteran's response, the RO should secure all outstanding VA treatment reports. 2. The RO should arrange for VA orthopedic and neurological examinations of the veteran for the purpose of ascertaining the current nature and extent of severity of his postoperative lumbar disc disease. Any further indicated special studies should be conducted. The claims file, copies of the criteria under 38 C.F.R. §§ 4.40, 4.45, 4.59, and a separate copy of this remand must be made available to and reviewed by the examiners prior and pursuant to conduction and completion of the examinations, and the examiners must annotate the examination reports in this regard. The examiners should record pertinent medical complaints, symptoms, and clinical findings, including specifically active and passive ranges of motion, and comment upon the functional limitations, if any, caused by the appellant's service-connected low back disability in light of the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59. It is requested that the examiners provide explicit responses to the following questions: (a) Does the service-connected low back disability involve only the joint structure, or does it also involve the muscles and nerves? (b) Does the service-connected disability cause weakened movement, excess fatigability, and incoordination, and if so, can the examiners comment on the severity of these manifestations on the ability of the appellant to perform average employment in a civil occupation? If the severity of these manifestations cannot be quantified, the examiners must so indicate. (c) With respect to subjective complaints of pain, the examiners are requested to specifically comment on whether pain is visibly manifested on movement of the joints, the presence and degree of, or absence of, muscle atrophy attributable to the service- connected low back disability, the presence or absence of changes in condition of the skin indicative of disuse due to the low back disability, or the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain attributable to the low back disability. (d) The examiners are also requested to comment upon whether or not there are any other medical or other problems that have an impact on the functional capacity affected by the low back disability, and if such overlap exists, the degree to which the nonservice-connected problem creates functional impairment that may be dissociated from impairment caused by the service-connected low back disability. If the functional impairment created by the nonservice- connected problem cannot be dissociated, the examiners should so indicate. The examiners must be requested to express an opinion as to the impact of the service-connected postoperative lumbar disc herniation on the veteran's ability to work. Any opinions expressed by the examiners must be accompanied by a complete rationale. 3. Thereafter, the RO should review the claims file to ensure that all of the foregoing requested development has been completed. In particular, the RO should review the requested examination reports and required opinions to ensure that they are responsive to and in complete compliance with the directives of this remand and if the are not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 4. After undertaking any development deemed essential in addition to that specified above, the RO should readjudicate the issue of entitlement to an increased evaluation for postoperative lumbar disc herniation with application of all pertinent criteria including those under 38 C.F.R. §§ 4.40, 4.45, 4.59. The RO should also document its consideration of the applicability of 38 C.F.R. § 3.321(b)(1) (1999). If the benefit requested on appeal is not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. A reasonable period of time for a response should be afforded. Thereafter, the case should be returned to the Board for further appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the RO. RONALD R. BOSCH Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. 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).