Citation Nr: 0006909 Decision Date: 03/15/00 Archive Date: 03/23/00 DOCKET NO. 94-29 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased rating for a lumbosacral spine disability currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. M. Cote, Associate Counsel INTRODUCTION The appellant served on active duty for training from August 1962 to February 1963 and served from January 1968 to November 1969. This action comes to the Board of Veterans' Appeals (the Board) from a February 1995 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection and assigned a 10 percent evaluation effective from July 1993 under Diagnostic Code 5293 for degenerative disc disease of the lumbosacral spine with arachnoiditis, right sciatica, and history of low back strain. In November 1996, a 20 percent evaluation was awarded based on limitation of motion of the lumbosacral spine (previously rated as degenerative disc disease with arachnoiditis and right sciatica), effective from March 1996, but in January 1997, the effective date for the 20 percent evaluation was changed to July 1993. On a claim for an original or increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law; thus, it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Accordingly, the issue before the Board is entitlement to an evaluation greater than 20 percent for a lumbosacral spine disability. This case was previously before the Board in June 1997, at which time it was remanded to the RO for additional development. REMAND Initially, the Board finds that the veteran's claim is "well- grounded" within the meaning of 38 U.S.C.A. § 5107(a); that is, a plausible claim has been presented. Murphy v. Derwinski, 1 Vet. App. 78 (1990). In the instant case, the veteran is technically not seeking an increased rating since his appeal arises from the original assignment of a disability rating. However, when a veteran is awarded service connection for a disability and subsequently appeals the initial assignment of a rating for that disability, the claim continues to be well grounded. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Board notes that the case was remanded in June 1997 because it was determined that, inter alia, a complete copy of April 1993 private medical records were not included in the claim folder. In a June 1997 letter, the RO requested copies of private doctor or hospital reports of all examinations and treatment for the service connected condition since July 1993 from the veteran; however, no attempt was made to obtain the April 1993 records. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Stegall, the Court held that "where . . . the remand orders of the Board . . . are not complied with, the Board itself errs in failing to insure compliance." Id. VA has a duty to assist the appellant in the development of facts pertinent to his claim. 38 U.S.C.A. § 5107(a). The duty to assist the veteran in obtaining and developing available facts and evidence to support his claim includes obtaining an adequate VA examination. This duty is neither optional nor discretionary. Littke v. Derwinski, 1 Vet. App. 90 (1990). Following a review of the evidence of record, the Board is of the opinion that the medical evidence regarding the level of impairment arising from the service connected lumbosacral spine disorder is a bit stale. The most recent VA examination pertaining was accomplished in June 1998. To constitute a useful and pertinent rating tool, rating examinations must be sufficiently contemporaneous to allow adjudicators to make an informed decision regarding the veteran's current level of impairment. Caffrey v. Brown, 6 Vet. App. 377 (1994). To ensure that VA has met its duty to assist the appellant in developing the facts pertinent to the claim, the case is REMANDED for the following development: 1. The RO should obtain the names and addresses of all medical care providers who treated the appellant for his lumbosacral spine disability since June 1998. After securing any necessary releases, the RO should obtain copies of all VA and private treatment records (not already of record) for association with the claims folder. 2. The RO should contact Medical/Dental Staff, Inc., to acquire a complete copy of the April 10, 1993 medical record. 3. The appellant should be afforded a VA orthopedic examination to determine the nature and severity of his service- connected lumbosacral spine disability. The claims folder should be made available to the examiner for review in conjunction with the examination. All necessary testing should be conducted and the results reported in detail. The examiner should identify all orthopedic and neurologic abnormalities of the veteran's low back, and the associated symptomatology and manifestations. The examiner should be requested to provide an opinion as the severity of the appellant's functional impairment due to his service-connected lumbosacral spine disability. The examiner should offer an opinion as to the degree of limitation of motion due to pain "on use or due to flare ups," and whether it supported by adequate pathology, and whether there is evidence of weakened movement. The examiner should offer an opinion as to any increased functional loss of the low back on increased use of the low back, expressed, if possible, in terms of additional degrees of loss of range of motion. In addition, the examiner is requested to set forth, for the record, what constitutes full range of lumbosacral spine motion, and is requested to specifically report any objective limitation of low back motion on range of motion testing, and characterize the degree of any limitation of motion. 4. The RO should review the examination report to ensure that it is in complete compliance with this remand. If not, the report should be returned to the examiner for corrective action. 5. The RO should thereafter readjudicate the issue of an increased evaluation for a lumbosacral spine disability, with consideration, as appropriate, of §§ 4.40 and 4.45, and the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995) and whether they provide a basis for an increased evaluation. The RO should then review the claims file to ensure that all of the above requested development has been completed. In particular, the RO should ensure that the requested examination and opinions are in complete compliance with the directives of this remand and, if they are not, the RO should take corrective action. See Stegall, 11 Vet. App. at 268. 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). 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. Mark D. Hindin 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).