Citation Nr: 0809765 Decision Date: 03/24/08 Archive Date: 04/09/08 DOCKET NO. 04-06 796 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the lumbosacral spine, to include as secondary to service-connected disability. 2. Entitlement to an evaluation in excess of 40 percent for service-connected lumbar spine impairment. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. M. Powell, Associate Counsel INTRODUCTION The veteran had active service from November 1982 to March 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision of the San Diego, California Regional Office (RO) of the Department of Veterans Affairs (VA) that continued a previously assigned 40 percent evaluation for service-connected lumbar spine impairment. The claim was previously before the Board in October 2006, at which time it was remanded for additional development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran seeks an increased evaluation for his service- connected lumbar spine impairment (previously characterized as lumbosacral strain). In October 2006, when the claim was initially before the Board, it was remanded for adjudication of the inextricably intertwined issue of entitlement to service connection for degenerative disc disease of the lumbosacral spine. Such issue was denied by the RO in August 2007. In November 2007, the AMC received, on behalf of the RO, the veteran's Notice of Disagreement with the August 2007 RO denial. However, the record does not demonstrate that the veteran was issued a Statement of the Case. In Manlincon v. West, 12 Vet. App. 238 (1999), the United States Court of Appeals for Veterans Claims (Court) held that in these circumstances where a Notice of Disagreement is filed, but a Statement of the Case has not been issued, the Board must remand the claim to the RO to direct that a Statement of the Case be issued. The Board finds that the issue of entitlement to an increased evaluation for service-connected low back impairment remains inextricably intertwined with the issue of entitlement to service connection for degenerative disc disease of the lumbosacral spine. Therefore, adjudication of the increased rating issue must again be deferred pending completion of the action requested below. The record also reflects that in the October 2006 Board Remand, the examiner was requested to "specify current disability manifestations due to service-connected and nonservice-connected lumbosacral spine disability." However, the Board in reviewing the February 2007 VA examination report does not find that the examiner specifically addressed this matter. As such, the Board finds that the veteran should be afforded another VA examination so that such issue can be addressed. Such information would be useful in the adjudication of the veteran's claim. Accordingly, the case is REMANDED for the following action: 1. The veteran should be afforded a VA orthopedic examination to determine the nature and extent of all current disabilities of the lumbosacral spine. The examiner should specifically indicate the ranges of back motion, including forward flexion, extension, left and right lateral flexion, and left and right rotation. The orthopedic examiner should comment on any additional functional impairment due to pain, and the pathology associated with pain should be described. With respect to the subjective complaints of pain, the examiner should be requested to specifically comment on whether pain is visibly manifested on movement of the joints, the presence and degree of, or absence of, muscle atrophy attributable to the service-connected disability and the presence or absence of any other objective manifestation that would demonstrate disuse or functional impairment due to pain attributable to the service-connected disability. Additionally, the examiner should be asked to opine whether or not the degenerative disc disease has any symptoms that are distinct and separate from the service-connected lumbar spine impairment/ lumbosacral strain. Manifestations of the degenerative disc disease should be distinguished from the service-connected lumbar spine impairment/ lumbosacral strain, to the extent reasonably feasible. The claims folder should be made available to the examiner. The rationale for all opinions expressed should be set forth in detail. 2. Readjudicate the issue of entitlement to service connection for degenerative disc disease of the lumbar spine, to include as secondary to service-connected lumbar spine impairment, with particular consideration of the February 2007 VA examiner's opinion that "[i]t is likely as not likely that his nonservice- connected disk disease is chronically aggravated by his service-connected back disability." If the benefit sought is not granted, issue a Statement of the Case reflecting all adjudications of the issue of entitlement to service connection for degenerative disc disease of the lumbar spine, to include as secondary to service-connected lumbar spine impairment. The appellant should be afforded the appropriate period of time to respond. Thereafter, only if a timely substantive appeal has been received, should the issue be returned to the Board for appellate consideration. 3. Following completion of the above, the RO should readjudicate the issue of entitlement to an increased evaluation for service-connected impairment of the lumbar spine. If the benefit sought is not granted, the veteran should be furnished an appropriate Supplemental Statement of the Case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2007).