Citation Nr: 0000343 Decision Date: 01/06/00 Archive Date: 01/11/00 DOCKET NO. 98-19 674 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to an increased evaluation for service connected lumbar paravertebral myositis and bilateral L5-S1 radiculopathy, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Orfanoudis, Associate Counsel INTRODUCTION The veteran served on active duty from July 1990 to October 1990. This matter comes before the Board of Veterans' Appeals (Board) from a September 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in San Juan, Puerto Rico. REMAND Initially, the Board finds that the veteran's claim for an increased evaluation for his service connected back disability is well grounded, in that he has presented a plausible claim. 38 U.S.C.A. § 5107(a) (West 1991); Proscelle v. Derwinski, 2 Vet.App. 629 (1992). Pursuant to 38 U.S.C.A. § 5107(a) (West 1991), the Board is obligated to assist the veteran in the development of his claim. The present appeal arises from a September 1997 rating decision which established entitlement to service connection for lumbar paravertebral myositis and assigned an initial disability evaluation of 10 percent effective as of March 29, 1995. The veteran had asserted that he was entitled to a greater evaluation than had been assigned. Pursuant to his disagreement with the assigned rating evaluation, the veteran underwent a VA examination in December 1996, wherein the diagnosis was lumbar paravertebral myositis with a bilateral L5-S1 lumbar radiculopathy by electromyograph. Thereafter, the veteran underwent another VA examination in February 1998, wherein a positive association between the veteran's service connected lumbar paravertebral myositis and the bilateral L5-S1 lumbar radiculopathy was established. Pursuant to the February 1998 findings, by rating action dated in June 1998, the RO determined that the veteran was entitled to an increased evaluation of 40 percent for his lumbar paravertebral myositis and bilateral L5-S1 radiculopathy, effective as of June 27, 1996, the date of corroboration of lumbar radiculopathy. The veteran continued his disagreement with the assigned rating evaluation and the RO issued a Statement of the Case (SOC) in October 1998. A review of the SOC suggests that the RO provided the law and regulations for the assignment of the appropriate rating evaluation covering the period of the current 40 percent evaluation which has been in effect as of June 27, 1996. The SOC does not, however, address the period from the assignment of the initial 10 percent evaluation to the date of the increase to 40 percent. The Board is of the opinion that in order to provide for the possibility of staged ratings, the entire period of the veteran's disability is to be considered. See Fenderson v. West, 12 Vet.App. 119 (1999). Additionally, the evidence reflects that the veteran underwent a private Neurology, Neuromuscular Disorders and Electromyograph study in May 1999. The impression was left S1 and right L5 radiculopathy and a lumbosacral spine magnetic resonance imaging (MRI) was recommended. There is no indication from the evidence of record that an MRI, as recommended, was undertaken. Accordingly, the Board is of the opinion that a contemporaneous and thorough VA examination is warranted. See Hayes v. Brown, 9 Vet. App. 67, 74 (1996); Littke v. Derwinski, 1 Vet.App. 90 (1990). The Board also notes that it appears there are pertinent medical records that are outstanding which need to be associated with the veteran's claims file. During his February 1998 VA examination, the veteran reported a six month history of treatment under the care of Dr. M. Correa, RMS Specialist. Additionally, the veteran indicated that he had received outpatient treatment at the San Juan VA Hospital. The Board is of the opinion that these records must be associated with the veteran's claims file prior to further adjudication of this matter. Based upon the foregoing, and in accordance with the statutory duty to assist the veteran in the development of evidence pertinent to his claim, the case is REMANDED for the following actions: 1. The RO should furnish the veteran the appropriate release of information forms in order to obtain copies of all VA and private medical records pertaining to current treatment of his back disability. The RO should also notify the veteran that he may submit additional evidence and argument in support of his claim. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). 2. The RO should obtain and associate with the claims file any records relating to treatment for the veteran's back disability from Dr. M. Correa, RMS specialist, and from the San Juan VA Hospital which are not already of record. 3. A VA examination should be conducted by a neurologist and an orthopedist in order to determine the severity of the veteran's service connected back disability. The examiner must be provided with the veteran's claims folder in conjunction with the examination, and review should specifically include an assessment of the veteran's back disability covering the entire period of said disability. In addition to an MRI, an electromyogram and nerve conduction studies, any additional testing or specialized examinations deemed necessary should be performed. It is requested that the examiner conduct range of motion testing and include what is considered in degrees to be the normal range of motion of the lumbosacral spine. It is further requested that the examiner report on the absence or presence (to include severity and frequency) of any symptoms compatible with sciatic neuropathy with characteristic pain, demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the disability. The examiner should also evaluate any functional loss due to pain and weakness, and should document all objective evidence of those symptoms, such as visible manifestation of pain on movement. In addition, the examiner should provide an opinion as to the degree of any functional loss that is likely to result from a flare-up of symptoms or on extended use, and document, to the extent possible, the frequency and duration of exacerbations of symptoms. The examiner should also offer an opinion as to the impact the veteran's back disability has on his employability. A complete rationale for any opinion expressed should be included in the examination report. 4. After completion of the foregoing development, the RO should review the expanded record and determine whether a higher rating is warranted from the period of the onset of disability to the present. If the benefits sought are not granted, the veteran and his representative should be furnished a supplemental statement of the case and an opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran 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. JEFF MARTIN 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).