Citation Nr: 0000592 Decision Date: 01/07/00 Archive Date: 01/11/00 DOCKET NO. 95-00 319 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an increased evaluation for degenerative disc disease of the cervical spine, currently evaluated as 30 percent disabling. 2. What evaluation is warranted for the period from October 16, 1992, for injury to the thoracic spine? 3. What evaluation is warranted for the period from October 16, 1992, for degenerative joint disease of the lumbosacral spine? REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARINGS ON APPEAL Veteran ATTORNEY FOR THE BOARD Michael A. Holincheck, Associate Counsel INTRODUCTION The veteran served on active duty from January 1960 to July 1960, and from March 1961 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Prior to the Board's August 1996 remand, the veteran's spinal disability was rated as a combined back and neck disability. While the case was in a remand status, the veteran was granted service connection for separate disabilities involving the thoracic and lumbosacral spine. Further, additional medical examinations were conducted to evaluate the separate disabilities and the results included in the veteran's claims file. The case is again before the Board for appellate review. REMAND The Board notes that the veteran was granted Social Security Administration (SSA) disability benefits by way of an administrative decision dated in May 1994. A copy of the letter of notification and the decision itself are associated with the claims file. The decision referred to the veteran's service-connected orthopedic and nonservice-connected heart disabilities in determining the appellant's impairment. As the SSA benefit was awarded during the appellate period copies of the medical records relied upon in the SSA decision must be obtained and associated with the veteran's claims file. Murinscak v. Derwinski, 2 Vet. App. 363, 370-72 (1992). The Board regrets its failure to request these records in its prior remand. The veteran's last Compensation and Pension (C&P) examinations occurred in October 1998. In light of the development time associated with a remanded case, the Board finds that a new examination prior to any return to the Board would be beneficial in evaluating the veteran's orthopedic disabilities. Accordingly, this case is REMANDED to the RO for the following actions: 1. The veteran should be contacted and requested to identify the names, addresses, and approximate dates of treatment for all health care providers, both VA and private, who may possess additional records pertinent to his claims. After securing any necessary authorization from the veteran, the RO should attempt to obtain copies of those treatment records identified which have not been previously secured. 2. The RO should contact the Social Security Administration for the purpose of obtaining a copy of the records upon which the veteran was awarded SSA disability benefits. All attempts to secure these records must be documented in the claims file. 3. After completion of the foregoing, the veteran should be scheduled for a VA orthopedic examination to determine the nature and extent of each of his spinal disabilities. All necessary tests and studies including X-ray and range of motion studies must be conducted. Range of motion should be recorded in numbers of degrees, and the normal ranges of motion should be provided. Any portion of the arc of motion which is painful should be so designated. The examiner should elicit from the veteran an account how his cervical, thoracic and lumbosacral disorders affect his daily activities and employability. In accordance with DeLuca v. Brown, 8 Vet. App. 202 (1995), the examination report must cover any weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and provide an opinion as to how these factors result in any limitation of motion. If the veteran describes flare- ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups, and if feasible, express this in terms of additional degrees of limitation of motion during the flare-ups. If the examiner is unable to offer an opinion as to the nature and extent of any additional disability during a flare-up, that fact must be so stated. The claims folder and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. The examination report should be typed. 4. After undertaking any development deemed appropriate, the RO should review the examination report. If the report is not in complete compliance with the instructions provided above, appropriate action should be taken. 5. Thereafter, the RO should then readjudicate the veteran's claims for an increased rating for his cervical spine disability and higher ratings for his thoracic and lumbosacral spine disabilities. This should include reference to DeLuca, and 38 C.F.R. §§ 4.40, 4.45, and 4.59 (1999). Further, the RO should specifically document their consideration of assigning staged ratings under the decision announced in Fenderson v. West, 12 Vet. App. 119 (1999). If the benefits sought on appeal are not granted to the veteran's satisfaction, the RO should issue a supplemental statement of the case. The veteran and his representative should then be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, 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 otherwise notified by the RO. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). DEREK R. BROWN 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).