Citation Nr: 18131282
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 15-46 591
DATE:	August 31, 2018
REMANDED
Entitlement to a compensable rating for a service-connected thoracolumbar spine disability, to include lumbosacral strain.
REASONS FOR REMAND
The appellant served on active duty in the United States Navy from March 1990 to March 1997.  
1. Entitlement to a compensable rating for a thoracolumbar spine disability is remanded.
The appellant asserts that his service-connected low back disability is more disabling than currently rated.  After a review of the evidence of record, the Board finds that remand is necessary prior to adjudication of this claim.  
As a preliminary matter, the Board notes that in a December 1997 rating decision, the RO granted service connection for a low back disability, then characterized as lumbosacral strain, based on service treatment records showing that in December 1993, the appellant sustained an injury to his low back while trying to lift a heavy safe.  At that time, he described hearing a “pop” in his lower back.  Subsequent treatment records show that his low back pain continued.  He was diagnosed in July 1994 as having a severe lumbosacral strain.  Later that month, the treating physician considered whether a diagnosis of myositis was appropriate.  X-ray studies in July 1994 also showed that the appellant had spondylolisthesis in the L5-S1 vertebrae.  
In the RO’s December 1997 rating decision, the RO assigned an initial noncompensable rating for the appellant’s service-connected low back disability, characterized as lumbosacral strain, because he had failed to report for a VA medical examination which had been scheduled to ascertain the severity of his service-connected disability.  
In April 2002, the appellant underwent a VA medical examination, apparently in connection with a claim for an increased rating for his service-connected low back disability.  At that time, the examining physician noted that the appellant’s symptoms had begun in service after he sustained injury while trying to transport a 700 pound safe.  He noted that the appellant’s symptoms following the injury included back pain and numbness in the extremities for some time.  He indicated that the numbness resolved but he still experienced continual back pain.  The examiner diagnosed the appellant as having chronic lumbosacral pain related to either mild degenerative joint disease or degenerative disc disease.  The Board can find no indication that the RO thereafter adjudicated the increased rating claim.  
The appellant was afforded a VA examination in April 2013 in connection with another claim for an increased rating.  At that time, the examiner diagnosed the appellant as having “non-service connected ‘moderate degenerative disc disease.”  The examiner did not provide a rationale for her conclusion in this regard, nor did she comment on the severity of the appellant’s service-connected low back disability.  Nonetheless, apparently based on this evidence, the RO continued the noncompensable rating assigned.  
The appellant’s most recent VA examination was in March 2015.  At that examination, the examiner diagnosed lumbosacral strain and degenerative disc disease.  The examiner stated that she was unable to provide an opinion as to the extent of the appellant’s functional loss as she did not feel he was giving his best effort during the examination.  
The Board finds that the record on appeal does not provide an adequate basis upon which to rate the appellant’s service-connected low back disability.  First, the nature and extent of the appellant’s disability is unclear from the record.  Although it appears that most examiners have considered all pathology as part and parcel of the service-connected disability, the April 2013 examiner apparently felt otherwise, although the opinion was not supported by any rationale.  The Board reminds the RO that where it is not possible to distinguish the symptoms of a service-connected disability from non-service connected manifestations, all the manifestations will be considered part of the service-connected disability.  Mittleider v. West, 11 Vet. App. 181, 182 (1998). 
Moreover, since the March 2015 examination was conducted, the appellant has reported that his low back disability has worsened.  See Appellant’s Form 9, December 2015.  As such, the Board finds that a new examination is necessary to determine the nature and current severity of the appellant’s service-connected thoracolumbar disability.  
The matter is REMANDED for the following action:
1. Schedule the appellant for an examination of the current severity of his service-connected thoracolumbar disability.  The examiner should specifically identify all pathology and symptomatology associated with the service-connected thoracolumbar disability and comment on the severity of that pathology and symptomatology.  
The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  

 
K. Conner
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K. Kleponis, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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