Citation Nr: 0810215	
Decision Date: 03/27/08    Archive Date: 04/09/08

DOCKET NO.  05-09 713	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, 
Colorado


THE ISSUE

Entitlement to an increased rating for post operative 
residuals of a lumbar laminectomy, with degenerative disc 
disease and disc bulging, L2-L5, currently rated as 20 
percent disabling, to include restoration of a prior 40 
percent rating.



REPRESENTATION

Appellant represented by:	Colorado Division of Veterans 
Affairs


ATTORNEY FOR THE BOARD

Dan Brook, Associate Counsel




INTRODUCTION

The veteran served on active duty for training from January 
1948 to January 1954 and from January 1955 to July 1969.

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from a March 2004 rating decision rendered by the 
Reno, Nevada, Regional Office (RO) of the Department of 
Veterans Affairs (VA) in which a 40 percent rating that had 
been in effect for a lumbar spine disorder since July 10, 
2001, was reduced to 20 percent effective June 1, 2004.  
Jurisdiction over the case was subsequently transferred to 
the Denver, Colorado RO.  In his notice of disagreement the 
veteran indicated that his back condition had not gotten 
better after back surgery.  Instead, he argued, it had 
continued to worsen.  The veteran is accordingly considered 
to have indicated disagreement both with the reduction in 
rating from 40 percent to 20 percent, and with the denial of 
a rating greater than 20 percent.  In January 2007 the Board 
remanded the case to the RO for further 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

A December 2007 letter from a treating physician indicates 
that the veteran had had a prior L4 to sacrum fusion which 
had been recently complicated by an L3/L4 spondylolisthesis 
of the fusion.  Though the veteran declined surgery it was 
giving him increased pain and decreased walking tolerance.  
As this letter appears to show an increase in disability as 
compared to the most recent January 2005 VA examination, some 
three years earlier, a Remand is necessary to afford the 
veteran with a new VA examination in order to accurately 
assess his current level of disability for rating purposes.  
Prior to the examination the RO should ensure that the 
veteran receives all appropriate Veterans Claims Assistance 
Act (VCAA) notice and should obtain any outstanding records 
of low back treatment.  

Accordingly, the case is REMANDED for the following action:

1.  The veteran should be provided 
appropriate VCAA notice in relation to 
his claim for restoration and increase in 
the form of a specific notice letter that 
is in compliance with the applicable 
statutes, implementing regulations and 
precedent interpretative decisions of the 
United States Court of Appeals for 
Veterans Claims (Court) and the United 
States Federal Circuit.   In particular 
the RO should ensure the notice complies 
with the recent Court decision in 
Vazquez-Flores v. Peake, 22 Vet. App. 37 
(2008). 

2.  The RO should ask the veteran to 
identify all sources of treatment or 
evaluation he has received for low back 
disability from January 2005 to the 
present and should secure copies of 
complete records of the treatment or 
evaluation from all sources identified. 

3.  The RO should arrange for a VA 
examination by an appropriate physician 
to determine the current severity of the 
veteran's low back disability.  The 
veteran's claims folder must be made 
available to the examiner.  Any indicated 
tests, including range of motion studies, 
should be performed.  The examiner should 
specifically note whether the veteran has 
any functional loss due to pain, 
weakness, fatigue and/or incoordination.   
The examiner should also note whether the 
veteran has had any incapacitating 
episodes during the prior 12 months 
(defined as a period of acute signs and 
symptoms due to intervertebral disc 
syndrome that requires bedrest prescribed 
by a physician).  Further the examiner 
should indicate whether the veteran has 
any neurological impairment related to 
his service connected low back disability 
and should describe the nature and 
severity of any such impairment.  

4.  The RO should then readjudicate the 
claim.  If it remains denied, the RO 
should issue an appropriate supplemental 
statement of the case and provide the 
veteran and his representative the 
opportunity to respond.  The case should 
then be returned to the Board for further 
appellate review, if otherwise in order.  
No action is required of the appellant 
until he is notified. 

The appellant has the right to submit additional evidence and 
argument on the matter or matters the Board has remanded.  
Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).



_________________________________________________
James L. March
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).