Citation Nr: 0003886 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 94-35 624 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to an evaluation in excess of 10 percent for residuals of low back strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The veteran served on active duty from May 1978 until May 1992, with two years, six months and twelve days prior active service. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a rating decision of December 1992 of the Atlanta, Georgia Regional Office (RO) which granted service connection for residuals of low back strain, and assigned a 10 percent evaluation, effective from May 14, 1992. The case was subsequently transferred to the VA Wichita, Kansas Regional Office after the appellant changed his residence. REMAND The veteran asserts that the symptoms associated with his service-connected residuals of low back strain include chronic pain, are more severely disabling than reflected by the currently assigned disability evaluation and warrant a higher rating. A review of the clinical evidence of record reflects that the appellant had magnetic resonance imaging (MRI) of the lumbar spine in December 1996 which was interpreted as showing findings which included degenerative disc disease L4 - transitional (sacralized) L5 with central disc herniation and hypertrophic changes. He subsequently underwent a VA examination for compensation and pension purposes in January 1977 whereupon the examiner opined that the degenerative disc disease currently indicated was not etiologically related to lumbar strain in service. The record reflects, however, that the veteran was afforded a personal hearing on appeal in July 1999 before a Member of the Board sitting at Washington, DC, wherein the issue of service connection for degenerative disc disease of the lumbar spine was raised. It was the accredited representative's contention that the low back disc pathology was not separate and distinct from the service-connected back disorder, and that the issue of entitlement to service connection for degenerative disc disease is inextricably intertwined with the issue on appeal. The Board agrees the issues are inextricably intertwined. It is found that while the etiology of the degenerative disc disease was addressed by clinical opinion on VA examination in January 1997, the RO has not adjudicated whether it is of service onset or is part of, etiologically related to, or aggravated by, the veteran's service-connected residuals of low back strain. Moreover, the record does not contain clinical opinion as to whether the service-connected lumbar strain aggravates the disc disease. Therefore a remand for further development is in order. In view of the foregoing, the case is Remanded for the following action: 1. The RO should schedule the veteran for an examination of the spine, to include neurological examination, by examiner(s) who have not previously examined him, to determine whether it is at least as likely as not that the currently identified low back disc disease is aggravated by the service- connected lumbar strain, and to distinguish the nature and extent of manifestations of all currently demonstrated low back disability, to include differentiation of manifestations of the service-connected lumbar strain from manifestations of the degenerative low back disc disease, to the extent possible. All necessary tests and studies, should be performed, and all clinical manifestations should be reported in detail. The examiner(s) must be provided with the appellant's claims folder and a copy of this remand for review prior to conducting an examination. The examiner is requested to: (1) Express an opinion as to whether pain that is related to each of the veteran's low back disabilities could significantly limit the functional ability of the affected joints during flare-ups, or when the joints are used repeatedly over a period of time, and express these determinations, if feasible, in terms of the additional loss of range of motion due to pain on use or during flare-ups; (2) determine whether the affected joints exhibit weakened movement, excess fatigability, or incoordination, and express these determinations, if feasible, in terms of the additional loss of range of motion due to any weakened movement, excess fatigability, or incoordination. Based on a review of all medical documentation and history on file, including the service medical records, the examiner is also specifically requested to set forth in narrative legible format an opinion as to whether it is at least as likely as not that the service-connected lumbar strain aggravates the low back disc disease. The examiner is additionally requested to distinguish manifestations of the service-connected lumbar strain from manifestations of the low back disc disease, to the extent possible. The basis and/or rationale for all opinions expressed should be provided. 2. Following completion of the foregoing, the RO must review the claims folder and ensure that the requested development has been completed in full. If the examination report does not include fully detailed descriptions of pathology or adequate responses to the specific opinions requested, the report must be returned to the examiner for corrective action. 38 C.F.R. § 4.2 (1999). 3. The appellant should be given adequate notice of the examination, to include advising him of the consequences of failure to report. If he fails to appear for the examination, this fact should be noted in the claims folder and a copy of the examination notification or refusal to report notice, whichever is applicable, should be obtained by the RO and associated with the claims folder. 4. Thereafter, the RO should adjudicate the inextricably intertwined issue of entitlement to service connection for degenerative disc disease of the low back, to include on the basis of being secondary to or aggravated by the veteran's service-connected residuals of low back strain. See 38 C.F.R. § 3.310 (1999) and Allen v. Brown, 7 Vet.App. 439, 448-449 (1995). Notice of the determination and the veteran's appellate rights should be provided. 5. The RO should readjudicate the claim of entitlement to an evaluation in excess of 10 percent for low back disability, with application of the tenets of Fenderson v. West, 12 Vet. App. 119, 126 (1999) to determine whether "staged" ratings are warranted for manifestations of the service-connected disability. If the benefits sought are not granted, for any issue in which a notice of disagreement has been provided, the veteran and his representative should be provided a supplemental statement of the case, and afforded the appropriate opportunity to respond. 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). 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. U. R. POWELL 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).