Citation Nr: 0002200 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 94-00 219 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York THE ISSUE Entitlement to a compensable rating for degenerative disc disease of the lumbosacral spine. REPRESENTATION Appellant represented by: New York Division of Veterans' Affairs ATTORNEY FOR THE BOARD David A. Brenningmeyer, Counsel INTRODUCTION The veteran served on active duty from September 1955 to August 1976. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 1992 decision by the RO. This case was previously before the Board in December 1995, when it was remanded to the RO for further development. Unfortunately, the veteran's claims folder was subsequently misplaced. The RO undertook efforts to reconstruct the folder, and to complete the development sought in the Board's December 1995 remand, and the case was returned to the Board in December 1999. In its December 1995 remand, the Board framed the issue here on appeal in terms of the veteran's entitlement to an increased rating. More recently, however, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (Court) has indicated that a distinction must be made between a veteran's dissatisfaction with the initial rating assigned following a grant of service connection (so-called "original ratings"), and dissatisfaction with determinations on later filed claims for increased rating. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Inasmuch as the issue here in question was placed in appellate status by a notice of disagreement (NOD) expressing dissatisfaction with an original rating, the Board has re-characterized the issue as set forth above. In a May 1999 statement, the veteran raised claims of entitlement to service connection for disorders of his right leg and hip, secondary to service-connected degenerative disc disease of the lumbosacral spine. As adjudicatory action has not yet been taken on those claims, they are referred to the RO for appropriate action. REMAND As noted above, the veteran's original claims folder has been misplaced. Although the RO has undertaken efforts to reconstruct the folder, the current record does not contain the medical reports underlying the Social Security Administration's (SSA's) decision to award the veteran disability benefits. In addition, it does not appear that the RO has been communicating of late with the veteran's appointed representative (New York Division of Veterans' Affairs), or that the representative has been given an opportunity to review the reconstructed file for purposes of presenting argument on the veteran's appeal. Consequently, because VA has a duty to assist the veteran in developing the facts pertinent to his claim, 38 U.S.C.A. § 5107(a), and because he has a right to full representation at every stage of his appeal, 38 C.F.R. § 20.600, a remand is required. 38 C.F.R. § 19.9 (1999). A remand is also required so that a statement of the case (SOC) can be prepared with regard to the claims for service connection for disorders of the veteran's left leg and hip, claimed as secondary to service-connected degenerative disc disease of the lumbosacral spine. The record shows that the RO denied those claims by a decision entered in April 1999, that the veteran submitted a NOD in May 1999, and that no SOC was thereafter prepared. In situations such as this, the Court has held that the Board should remand the matter to the RO for the issuance of a SOC. See, e.g., Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). For the reasons stated, this case is REMANDED to the RO for the following actions: 1. The RO should ask the veteran to provide the RO with information regarding any evidence of current or past treatment for his low back that has not already been made part of the reconstructed record, and should assist him in obtaining such evidence following the procedures set forth in 38 C.F.R. § 3.159 (1999). The RO should obtain the records from SSA, and make an effort to ensure that all relevant records of VA treatment have been obtained for review. The veteran should be given a reasonable opportunity to respond to the RO's communications, and any additional evidence received should be associated with the claims folder. 2. After the above development has been completed, the veteran should be scheduled for an orthopedic and neurologic examination for purposes of assessing the current severity of his low back disability, and resolving questions relating to the etiology of his current symptomatology. The examiner(s) should review the claims folder and a copy of this remand before examining the veteran. All indicated testing should be conducted, and current X-rays of the low back should be obtained. The examiner(s) should specifically indicate whether the veteran has muscle spasms on extreme forward bending; whether there is any listing of the spine, a positive Goldthwait's sign, or evidence of osteoarthritic changes or narrowing of joint spaces; and whether there is any abnormal mobility on forced motion. The examiner(s) should also indicate whether the veteran has intervertebral disc syndrome of the low back and, if so, should indicate the frequency with which the veteran experiences attacks attributable to that condition. The examiner(s) should also note whether the condition is manifested by persistent symptoms compatible with sciatic neuropathy with characteristic pain, demonstrable muscle spasm, absent ankle jerk, or other neurologic findings appropriate to the site of the diseased disc(s). The examiner(s) should then indicate whether the intervertebral disc syndrome affecting the low back is best described as mild, moderate, severe, or pronounced. Finally, the examiner(s) should conduct range of motion studies on the low back. The examiner(s) should first record the range of motion observed on clinical evaluation, in terms of degrees. If there is clinical evidence of pain on motion, the examiner(s) should indicate the degree of motion at which such pain begins. Then, after reviewing the veteran's complaints and medical history, the examiner(s) should render an opinion, based upon best medical judgment, as to the extent to which the veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically) due to these factors. Specifically, the examiner(s) should indicate whether the overall disability picture, in terms of limited motion, and including weakness, excess fatigability, incoordination, and/or pain due to repeated use or flare-ups, is best equated with (1) slight, (2) moderate, or (3) severe limitation of motion in the lumbar spine. The examiner(s) should also provide an opinion as to whether it is at least as likely as not that the veteran's current symptomatology can be attributed to service, or whether it is more likely due to a supervening cause or event unrelated to service. In so doing, the examiner(s) should glean what they can about the veteran's in-service treatment from secondary sources (such as the June 1992 rating decision, and statements provided by the veteran), inasmuch as the actual records of in-service treatment have been misplaced and are currently unavailable. A complete rationale for all opinions should be provided. 3. The RO should review the report of the orthopedic and neurologic examination(s) to determine whether the requirements of the foregoing paragraph have been satisfied. If they have not, the report(s) should be returned as inadequate, and arrangements should be made to ensure full compliance with the remand instructions. 4. The RO should re-examine the veteran's claims of service connection for disorders of the left leg and hip to determine whether additional development or review is warranted. If no preliminary action is required, or when it is completed, the RO should prepare a SOC in accordance with 38 C.F.R. § 19.29, unless the matter is resolved by granting the benefits sought on appeal, or the NOD is withdrawn. The claim should be certified to the Board for appellate review if, and only if, a timely substantive appeal is received. 5. The RO should take adjudicatory action on the claim for a compensable rating for degenerative disc disease of the lumbosacral spine. In so doing, the RO should consider and apply the provisions of 38 C.F.R. §§ 4.40, 4.45, and 4.59; VAOPGCPREC 36-97 (Dec. 12, 1997); and the Court's decision in DeLuca v. Brown, 8 Vet. App. 202 (1995). The RO should also give consideration to the assignment of "staged ratings," in accordance with the principles set out in Fenderson v. West, 12 Vet. App. 119 (1999). If any benefit sought is denied, a SSOC should be issued to the veteran and his representative, New York Division of Veterans' Affairs. After the veteran and his representative have been given an opportunity to respond to the SSOC, the claims folder should be returned to this Board for further appellate review. No action is required by the veteran until he receives further notice, but he may furnish additional evidence and argument while the case is in remand status. Kutscherousky v. West, 12 Vet. App. 369 (1999); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). The purposes of this remand are to procure clarifying data and to comply with governing adjudicative procedures. The Board intimates no opinion, either legal or factual, as to the ultimate disposition of this appeal. This claim must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court 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, the Veterans Benefits Administration's Adjudication Procedure Manual, M21-1, Part IV, directs 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 F. HALSEY Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a decision of the Board is appealable to the Court. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of this appeal. 38 C.F.R. § 20.1100(b) (1999).