Citation Nr: 0002111 Decision Date: 01/27/00 Archive Date: 02/02/00 DOCKET NO. 99-05 392 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for low back disability. 2. Entitlement to service connection for neck and cervical spine disability. 3. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Tierney, Counsel INTRODUCTION The veteran served on active duty from July 1987 to January 1992, and from March 1994 to June 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The veteran initially requested a Board hearing at the RO before a Member of the Board. However, he subsequently waived his right to an in-person hearing and chose to have a videoconference hearing before a Member of the Board. The videoconference hearing was held in September 1999 before the undersigned Board Member. REMAND The veteran testified at the videoconference hearing that he had received treatment after service only from the VA Medical Center in Muskogee. The veteran indicated that he had been receiving treatment there since about June 1998, primarily for his service-connected low back disability. However, he also testified that he went to the VA complaining of tinnitus in 1998. In addition, he testified that he had been told that he had degenerative disc disease or degenerative joint disease of the cervical spine. The evidence of record does not contain any VA outpatient treatment records. These records are in the possession of the VA and are relevant to his claims. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (per curiam). In regard to the claim for a rating in excess of 10 percent for the service-connected low back disability, the veteran underwent a VA examination in December 1998. The examiner noted that the veteran had chronic lumbosacral spine strain with moderate functional loss in his back primarily due to pain. However, the examiner did not describe the functional impairment due to pain or provide other information needed for rating purposes. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Accordingly, this case is REMANDED to the RO for the following actions: 1. The RO should contact the veteran and request that he identify specific names, addresses, and approximate dates of treatment for all health care providers, private and VA, who may possess additional records pertinent to his claims. When the requested information and any necessary authorizations have been received, the RO should attempt to obtain copies of all pertinent records which have not already been obtained. In addition, the RO should request the veteran to submit medical evidence which of a nexus between his current cervical spine and tinnitus disabilities and his military service or service-connected disability. 2. The RO should request all of the veteran's treatment records from the Muskogee VA Medical Center from June 1997 to the present. 3. Then, the RO should arrange for the veteran to undergo a VA orthopedic examination by a physician with appropriate expertise to determine the nature and extent of impairment from the veteran's service-connected low back disability. All indicated studies, including range of motion studies in degrees, should be performed. The extent of any incoordination, weakened movement and excess fatigability on use should be described. The physician should be requested to identify any objective evidence of pain or functional loss due to pain. Any excursion of motion accompanied by pain should be specifically identified, and the examiner should be requested to assess the extent of any pain. The physician should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare-ups. If this is not feasible, the physician should so state. To the extent possible, the examiner should distinguish the manifestations of the service-connected disability from those of any other disorder present. The veteran's claims file, including a copy of this REMAND, must be made available to the examiner prior to the examination. The examination report is to reflect whether a review of the claims file was made. The examination report must be typed. 4. Thereafter, the RO should review the claims file and ensure that all development actions, including the medical examination and requested opinions, have been conducted and completed in full. Then, the RO should undertake any other indicated development and readjudicate the issues on appeal. In readjudicating the veteran's claim for a rating in excess of 10 percent for the low back disability, the RO should consider all pertinent diagnostic codes under the VA Schedule for Rating Disabilities in 38 C.F.R. Part 4 and application of 38 C.F.R. § 4.40 regarding functional loss due to pain and 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination or pain on movement of a joint. See DeLuca v. Brown, 8 Vet. App. 202 (1995). 5. If the benefits sought on appeal are not granted to the veteran's satisfaction, the veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded an appropriate opportunity to respond before the record is returned to the Board for further review. 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 appellant has the right to submit additional evidence and argument on the matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case 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. SHANE A. DURKIN 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).