Citation Nr: 0810226 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 03-26 986 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to an initial evaluation in excess of 40 percent for the service-connected lumbar spine strain, with diffuse spondylosis. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The veteran had active military service from August 1982 to August 2002. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a June 2002 RO rating decision that granted service connection and assigned an initial rating of 20 percent disabling. As the issue on appeal before the Board involves a request for higher initial rating following the grant of service connection, the Board has characterized the issue in light of the distinction noted in Fenderson v. West, 12 Vet. App. 119, 126 (1999) (distinguishing initial rating claims from claims for increased ratings for disabilities already service- connected). In a March 2002 the Board increased the initial evaluation for the service-connected low back disability from 20 percent to 40 percent. The veteran thereupon appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court), contending that an initial rating higher than 40 percent should be assigned. In August 2006 the Court granted a Joint Motion of the parties to vacate the portion of the Board's decision that denied an initial evaluation of 40 percent and to remand the case back to the Board. In January 2007 the Board remanded the case to the RO for actions in compliance with the Court's order. For the reasons articulated below the appeal is once again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND Unfortunately, the Board's review of the claims file reveals that further RO action is required on the claim on appeal, even though such action will, regrettably, further delay an appellate decision on the claim. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. Id. Because the RO did not fully comply with the directives of the Board's prior remand in this appeal, another remand is required. The Board's remand in January 2007 was specifically predicated on the previous failure to afford the veteran with EMG testing, as advised the VA examiner in November 2003. The Board's remand directed the RO to schedule the veteran for a new VA examination, to specifically include EMG studies of the lower extremities. The Board's remand instructed the examiner to provide an opinion as to whether there existed an additional neurological disability (in addition to the orthopedic disability rated under the General Rating Formula for the Spine). If so, the examiner was requested to describe the severity of such disability; if not, the examiner was requested to so state. The veteran underwent a VA examination of the spine in September 2007. The examination report states that EMG/NCV study was ordered. There is no indication as to whether the EMG/NCV study was actually performed; at any rate, there is no EMG/NCV study of record for the Board to review, and the examiner did not provide the requested opinion regarding the presence or absence of a separately ratable neurological disability. The claim is accordingly remanded once again to enable the RO to associate the EMG/NCV study with the file and obtain the requested medical opinion in compliance with the terms of the Board's remand in January 2007. The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with VCAA and its implementing regulations. Specifically, the RO should advise the veteran of the elements required to establish entitlement to increased ratings per Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), Hart v. Mansfield, 21 Vet. App.505 (2007), and Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. January 30, 2008), and should also advise the veteran to send VA all evidence in his possession not already of record that is relevant to his claim. Hence, in addition to the actions requested hereinabove, the RO should also undertake any other development and/or notification action deemed warranted by VCAA prior to adjudicating the claim on appeal. Accordingly, this matter is hereby REMANDED to the RO for the following actions: 1. The RO should sent to the veteran a letter advising him of the elements required by Dingess/Hartmann, Hart, and Vazquez-Flores as cited above regarding claims for increased rating. The letter should advise the veteran of the respective duties of VA and the claimant in procuring evidence, and should invite the veteran to provide VA with any evidence in his possession relevant to his claim that is not already of record. 2. Whether or not the veteran responds to the letter above, the RO should return the file to the VA physician who performed the September 2007 examination so the examination can be completed. The examiner should be provided a copy of this REMAND. The examiner should review the EMG/NCV studies that were ordered in September 2007 and should associate those studies with the file. The examiner should thereupon issue an addendum to the September 2007 examination report detailing whether the veteran has an objective neurological disorder that is causally related to the service-connected spine disorder. If there is no such separate neurological disorder, the examiner should so state. If there is a separate neurological disorder, the examiner should describe the severity of such disability in terms conforming to the applicable rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Diagnostic Codes 8510-8530. If the EMG/NCV study ordered in September 2007 is not available for the examiner's review, or was not performed as ordered, the veteran should be scheduled for such a study, following which the examiner should review the study and provide the addendum opinion described above. 3. To avoid future remand, the RO must ensure that the required actions have been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, corrective action should be undertaken before the claims file is returned to the Board. See Stegall, 11 Vet. App. 268. 4. After completing the required actions, and any additional notification and/or development deemed warranted, RO should readjudicate the veteran's claim in light of all pertinent evidence and legal authority. If any benefit sought on appeal is not granted, the RO should furnish to the veteran and his representative an appropriate SSOC that includes citation to and discussion of all additional legal authority considered, as well as clear reasons and bases for all determinations, and should afford him a reasonable opportunity to respond thereto. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The purpose of this REMAND is to afford due process; it is not the Board's intention to imply whether the benefits requested should be granted or denied. The veteran need take no action unless otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992). This REMAND must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2007). _________________________________________________ STEPHEN L. WILKINS 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).