Citation Nr: 0007575 Decision Date: 03/21/00 Archive Date: 03/28/00 DOCKET NO. 98-16 479 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE What evaluation is warranted for degenerative arthritis of the lumbar spine since August 2, 1996? ATTORNEY FOR THE BOARD P. H. Mathis, Counsel INTRODUCTION The veteran had active service from August 1988 to August 1996. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. REMAND The veteran contends that her service connected back disorder is more severely disabling than it has been rated. Initially, the Board finds that the veteran's claim is "well- grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, a plausible claim has been presented. Murphy v. Derwinski, 1 Vet. App. 78 (1990). An allegation of increased disability is sufficient to establish a well- grounded claim seeking an increased rating. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). In the instant case the veteran is technically not seeking an increased rating, since her appeal arises from the original assignment of a disability rating. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter Court), held that evidence to be considered in the appeal of an initial assignment of a rating disability is not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In this decision, the Court discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126. Here, the Board is not satisfied that all relevant facts have been properly developed to their full extent or that VA has met its duty to assist. White v. Derwinski, 1 Vet. App. 519 (1991); Godwin v. Derwinski, 1 Vet. App. 419 (1991). The veteran complains of incapacitating back pain. When evaluating a service-connected disability involving the musculoskeletal system, adequate consideration must be given to whether the rating addresses functional loss due to pain under 38 C.F.R. § 4.40 (1999), and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45 (1999); DeLuca v. Brown, 8 Vet. App. 202 (1995). Section 4.40 provides that it is essential that any examination on which the ratings are based adequately portray any functional loss which may be due to pain, and the impact of the pain must be considered in making a rating determination. See: Johnson v. Brown, 9 Vet. App. 7, 11 (1996) and Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997). In addition to DeLuca considerations, although the veteran was afforded examinations by VA, the neurologist specifically noted that the claims folder was not available for review, and the other examiners did not refer to it. This suggests to the Board that none of the examiners had access to the claims folder. Also, none of the examiners discussed the impact of the service-connected disability on her industrial abilities. The duty to assist the veteran includes the duty to develop the pertinent facts by conducting a current and thorough medical examination when indicated by the circumstances of the case. 38 C.F.R. § 3.159 (1999). For the reasons discussed, the Board finds that additional examination of the veteran, with the claims folder available for review, is necessary prior to a decision on the merits. Accordingly, this case is REMANDED to the RO for the following actions: 1. The veteran should be requested to provide a list of all medical treatment and/or examinations that she has received for the service-connected back disability since August 1997. She is advised that furnishing full information regarding this treatment might prove beneficial regarding her claim for increased benefits. She should be asked to complete the necessary authorizations for release of private information to VA, if necessary. The RO should obtain all records from the sources reported by the veteran that are not currently in the claims file. If any private treatment is reported and the records are not obtained, the veteran should be provided with information concerning the negative results, and afforded an opportunity to obtain the records. 38 C.F.R. § 3.159 (1999). Any records received should be associated with the claims file. 2. Following the completion of the foregoing, the veteran should be scheduled for comprehensive orthopedic and neurological examinations for the purpose of determining the nature and degree of severity of her service connected back disability. All required tests and studies should be completed. The claims folders and a copy of this remand must be made available to and reviewed by the examiners. The examiners should specifically address the extent of functional impairment attributable to all of the veteran's lumbosacral spine pathology. The examiners should conduct range of motion testing, and should state what is considered normal range of motion. The presence or absence of reflexes, pain, weakened movement, excess fatigability or incoordination on movement should be specifically noted. Moreover, whether there is likely to be additional loss of motion loss due to any of the following should be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner should describe whether any existing pain, tingling or numbness significantly limits the veteran's functional ability during flare-ups or in use situations. DeLuca; 38 C.F.R. § 4.40. All pertinent symptomatology and findings should be reported in detail. The degree of industrial impairment related to the disability must be described. The factors upon which the opinions are based must be set forth. The examination reports should be typed. 3. After the development requested has been completed, the RO should review the examination reports to ensure that they are in complete compliance with the directives of this REMAND. If the reports are deficient in any manner, the RO must implement corrective procedures at once. After completion of the above development, the RO should readjudicate the appellant's claim to include written consideration of the Fenderson doctrine. If the claim remains denied, the RO should provide the veteran with a Supplemental Statement of the Case, and she should be afforded the appropriate amount of time to respond thereto. Then, the entire claims folder should be returned to the Board, if in order. No action is required of the veteran until she is otherwise notified. The appellant 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).