Citation Nr: 0001250 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 97-29 437 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an increased rating for residuals of lumbosacral strain, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. M. Cote, Associate Counsel INTRODUCTION The veteran served on active duty from April 1966 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 1996 rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO), which denied entitlement to a compensable rating for residuals of lumbosacral strain. During the pendency of the appeal, the RO increased the disability rating for residuals of lumbosacral strain from 0 to 10 percent, effective September 2, 1997. The veteran has perfected an appeal of the February 1996 decision, which appeal is now before the Board. REMAND The veteran's claim is well grounded. 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78 (1990). A veteran's assertion that his disability has worsened serves to render the claim well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). A review of the record demonstrates that service connection is presently in effect for lumbosacral strain, which has been assigned a 10 percent disability evaluation under Diagnostic Code 5295. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the Court held that ratings based on limitation of motion do not subsume 38 C.F.R. § 4.40 or § 4.45 (1998). It was also held that the provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The guidance provided by the Court in DeLuca must be followed in adjudicating the veteran's increased rating claim. However, in that regard, the Board notes that the provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, should only be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). While the veteran was afforded a VA examination in February 1999, the information received as a result of these examinations is not sufficiently detailed for determining whether an increased evaluation is warranted under §§ 4.40 or 4.45. VA regulations provide that where "diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2 (1999); see 38 C.F.R. § 19.9 (1999). Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993) The examiner did not report whether the veteran had listing of the whole spine, positive Goldthwait's sign, or whether there was abnormal mobility on forced motion. The examiner also did not sufficiently describe loss of lateral motion or report whether there was any additional loss of spinal motion due to pain on use or during flareups. It was also unclear to what degree the noted abnormalities were attributable to the service connected condition. Such findings are necessary in order for the Board to render an adequate decision. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (Board was required to secure an examination that reported whether the reported range of motion represented unilateral loss of spinal motion in a standing position and whether there was muscle spasm on extreme forward bending). The examiner indicated that there were "no records to review." Review of the veteran's surgical records and records from medical examinations and treatment is necessary to ensure a fully informed decision. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, the case is REMANDED to the RO for the following development: 1. The RO should request that the veteran supply the names, dates, and places, of any individuals or treatment facilities that have treated him for any low back disorder since February 1999. After having received proper authorization from the veteran, the RO should obtain copies of any records that are not already part of the claims file and associate them with the claims file. 2. The RO should schedule the veteran for a VA musculoskeletal examination of the low back to determine the nature and severity of his service-connected lumbosacral strain. All appropriate tests and studies should be performed and all findings must be reported in detail. The claims folder and a copy of this remand must be made available to the examiner for review prior to the examination. If loss of range of motion is present, the examiner should comment on whether the loss of range of motion is mild, moderate, or severe as well as the reason for the loss of motion. The examiner is further requested to carefully elicit from the veteran all pertinent subjective complaints with regard to the low back and lower extremities and to make specific findings as to whether each complaint is related to the service- connected lumbosacral strain. The examiner is also requested to render an opinion as to whether there is adequate pathology present to support the level of each of the veteran's subjective complaints. The examiner is further requested to indicate the presence or absence of the following: muscle spasm on extreme forward bending; unilateral loss of lateral spine motion in standing position; listing of whole spine to opposite side; positive Goldwaithe's sign; marked limitation of forwarding bending in standing position; loss of lateral motion with osteoarthritic changes; narrowing or irregularity of joint space; or some of the above with abnormal mobility on forced motion. 3. The examiner is also requested to comment on whether pain and limitation of motion, if any, is attributed solely to the service-connected lumbosacral strain, and whether the service-connected lumbosacral strain cause weakened movement, fatigability, or incoordination. The examiner should comment on the severity of these manifestations on the ability of the appellant to perform average employment in a civil occupation. 4. The examiner should also comment on whether pain is visibly manifested on movement of the joint, the presence and degree of, or absence of, muscle atrophy attributable to the lumbosacral strain, the presence or absence of changes in condition of the skin as indicative of disuse due to the lumbosacral strain, or the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain attributable to the service connected lumbosacral strain. 5. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development has been conducted and completed in full. If any development is incomplete, including if the requested examinations do not include all test reports, special studies, or opinions requested, appropriate corrective action should be implemented. 6. Thereafter, the RO should readjudicate the veteran's claim for an increased evaluation for lumbosacral strain. The RO review should include consideration of the provisions of 38 C.F.R. §§ 3.321(b)(1), 4.40, 4.45, and 4.59, and DeLuca v. Brown. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless 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). The veteran is advised that the examination requested in this remand is necessary to evaluate his claim, and that a failure, without good cause, to report for scheduled examinations could result in the denial of his claim. 38 C.F.R. § 3.655 (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).