Citation Nr: 0004988 Decision Date: 02/25/00 Archive Date: 03/07/00 DOCKET NO. 98-11 885A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to an increased rating for degenerative disc disease of the lumbar spine with a compression fracture, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Solomon J. Gully, IV, Associate Counsel INTRODUCTION The veteran served on active duty from October 1989 to September 1993. This matter is currently before the Board of Veterans' Appeals (Board) on appeal from an April 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming, which continued the 10 percent evaluation of the veteran's service-connected degenerative disc disease of the lumbar spine with a compression fracture. REMAND The Board finds that the veteran's claim for an increased evaluation of the service-connected degenerative disc disease of the lumbar spine with a compression fracture is well grounded as it is capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78 (1990). This finding is based on the veteran's assertion that such disability has increased in severity. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). If a claim is well grounded, VA has a duty to assist in the development of facts pertinent to the claim (38 U.S.C.A. § 5107(b)) which includes a thorough VA examination. Hyder v. Derwinski, 1 Vet. App. 221 (1991). Historically, an August 1994 rating decision granted service connection for degenerative disc disease of the lumbar spine with a compression fracture, and a 10 percent evaluation was assigned. This decision was based on service medical records reflecting treatment for low back strain, an April 1994 VA examination report showing a compression fracture of the lumbar spine with discomfort, and a May 1992 MRI study revealing degenerative disk disease at L3-4 and L4-5. VA outpatient records show treatment for various disabilities, including a low back disorder, from May 1994 to December 1997. The veteran sought treatment for mid to low back pain in April 1995, and gave a history of experiencing the pain since softball practice the previous week. A physical examination of the back revealed tenderness of the left thoracic muscle mass in the T3-5 area. No vertebral tenderness was noted. Range of motion of the spine was within normal limits. Muscle strain was diagnosed. In January 1997, the veteran reported experiencing low back pain since the previous morning, and explained that the pain was worse with bending. Para lumbar muscle tenderness was noted on physical examination. The diagnostic impression was degenerative joint disease of the lumbar spine. A December 1997 outpatient treatment record notes a one-week history of low back pain, worse on the right than the left. The veteran reported a burning sensation radiating down the back of both legs when bending forward. Tenderness of the right sacroiliac was noted on physical examination. Degenerative disc disease of the lumbar spine was diagnosed. The veteran sought an increased evaluation of his service- connected degenerative disc disease of the lumbar spine with a compression fracture in January 1998, asserting that he was unable to sit, stand or bend without pain radiating to both legs. On VA examination in February 1998, the veteran reported pain and stiffness on a daily basis with pain radiating into his legs, and numbness in the right posterior thigh and both buttocks once a week. He explained that the pain was worse with standing or driving for prolonged periods, and better with stretching, hip rotation and anti-inflammatory medications. Muscle spasms were noted in the lumbosacral area on physical examination. Forward flexion was to 90 degrees, lateral flexion was to 15 degrees bilaterally, and rotation was to 40 degrees bilaterally. A neurological examination revealed normal sensation and strength. Some straight leg raising pain was noted in the right posterior thigh and buttock. Reflexes were symmetrical in the lower extremities. X-rays of the lumbosacral spine showed degenerative disk disease at L3-4 and L4-5 with a compression fracture at L4. Based on this evidence, an April 1998 rating decision continued the 10 percent evaluation of the veteran's low back disability. The veteran filed a notice of disagreement (NOD) with this evaluation in June 1998, and indicated that his low back disability had increased in severity. The RO continued the 10 percent evaluation of the veteran's degenerative disc disease of the lumbar spine with a compression fracture in August 1998. The veteran submitted a substantive appeal (Form 9) the following month, perfecting his appeal. In his June 1998 notice of disagreement, the veteran stated that he felt his service-connected low back disability had "gotten worse." The Board finds that the veteran's comments are ambiguous as to whether he meant his condition had "gotten worse" since the time the claim was filed, or had "gotten worse" since the last VA examination. Because an allegation of increased disability since the last VA evaluation requires further development, the Board reluctantly concludes that the prudent course to take is to obtain further clarification. Therefore, pursuant to VA's duty to assist the appellant in the development of facts pertinent to his claims under 38 U.S.C.A. § 5107(a) (West 1991 & Supp. 1999); 38 C.F.R. § 3.103(a) (1999), the Board is deferring adjudication of the issue prepared and certified for appellate review pending a remand of the case to the RO for further development as follows: 1. The veteran may submit additional evidence and argument in support of his claim. Kutscherousky v. West, 12 Vet. App. 369 (1999). 2. The RO should contact the veteran and request that he report all treatment and evaluation that he has received since February 1998 for his low back disability. After obtaining the appropriate authorization, the RO should attempt to obtain any such records which have not been previously obtained. 3. The RO should arrange for the veteran to be examined by the appropriate physician to determine the nature and severity of his service-connected degenerative disc disease of the lumbar spine with a compression fracture. Any indicated studies should be conducted. The examination report should include a full description of the veteran's symptoms, clinical findings, and associated functional impairment. All findings should be recorded in detail, including range of motion of the veteran's lumbar spine, recorded in degrees. In addition, the examiner should address the following: a) The examiner should carefully elicit all of the veteran's subjective complaints concerning his service- connected low back disability, and offer an opinion as to whether there is adequate pathology present to support each of the veteran's subjective complaints and the level of each complaint, including pain. b) Whether the low back disability causes weakened movement, excess fatigability, and incoordination, and if so, can the examiner comment on the severity of these manifestations on the ability of the appellant to perform average employment in a civil occupation? c) Whether pain is visibly manifested on movement of the lumbar spine, and if so, to what extent; the presence and degree of, or absence of, muscle atrophy attributable to the disability; the presence or absence of changes in the condition of the skin indicative of disuse due to the disability; or the presence or absence of any other objective manifestation that would demonstrate disuse of functional impairment due to pain attributable to the disability. The examiner should also comment on whether there are other objective indications of the extent of the veteran's pain, such as the medication he is taking or the type of any treatment he is receiving. d) The examiner should specifically comment on the most appropriate diagnostic classification for the veteran's service-connected low back disability. If there is more than one back disorder present, the examiner should comment on the causal relationship, if any, between the service-connected low back disorder and any other back pathology which may be present. If back pathology exists that is not casually related to service or the service-connected back disability, the examiner should comment as to whether such nonservice-connected back pathology may be distinguished from the service- connected pathology. Comprehensive reports, which represent consideration of the aforementioned factors, as well as the history of the veteran's disability, should be provided. Copies of pertinent clinical evidence from the veteran's claims folder and a copy of this remand must be provided to the examiner for review in conjunction with the examination. Any opinions expressed must be accompanied by a complete rationale. 4. Thereafter, the RO should review the claims file to ensure that the above requested development has been completed in full. In particular, the RO should review the requested examination report to ensure that it is in complete compliance with the directives of this remand and if it is not, the RO should implement corrective procedures. Stegall v. West, 11 Vet. App. 268 (1998). 5. After the completion of any development deemed appropriate in addition to that specified above, the RO should readjudicate the issue of entitlement to an increased evaluation for degenerative disc disease of the lumbar spine with a compression fracture. 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 final appellate review, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The appellant need take no action until otherwise notified by the RO. 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. Richard B. Frank 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).