Citation Nr: 0810471 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-02 584 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an evaluation in excess of 20 percent for traumatic arthritis of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Joseph R. Keselyak, Associate Counsel INTRODUCTION The veteran served on active duty from November 1950 to November 1953 and October 1961 to August 1962. This matter comes to the Board of Veterans' Appeals (Board) from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. This matter was last before the Board in May 2007 when it was remanded for further development. The appeal is once again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND As mentioned, this matter was last before the Board in May 2007, when it was remanded to obtain a medical examination to determine the extent and severity of the veteran's service- connected degenerative arthritis of the lumbar spine. In light of Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand "confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders"), this matter must again be remanded. The Board's May 2007 remand order contained specific requests in relation to the veteran's service-connected traumatic arthritis of the lumbar spine. The examiner was requested to describe applicable loss of motion of the lumbar spine attributable to the service-connected traumatic arthritis, as distinguished to the extent possible from any loss due to aging. When it is not possible to separate the effects of a service-connected condition from a nonservice-connected condition, such effects must be attributed to the service- connected condition. Mittleider v. West, 11 Vet. App. 181 (1998); 38 C.F.R. § 3.102 (2007). The examiner was also requested to determine whether the veteran's lumbar spine exhibited weakened movement, excess fatigability or incoordination attributable to his service-connected disability and, if feasible, quantify the degree of additional range of motion lost due to any of these factors. See DeLuca v. Brown, 8 Vet. App. 202 (1995) In October 2007 the veteran was provided a VA examination. A review of the report of examination associated therewith shows that the examiner did not comply with the Board's May 2007 remand order, specifically with the requests as outlined above. Accordingly, a remand is necessary to ensure compliance with the remand order. The record indicates that the veteran has consistently sought treatment for his low back disability at the New Orleans VA medical center and the latest records in the claims file are dated in June 2005; thus, there may be VA records outstanding. Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Hence, VA has a duty to seek these records. 38 C.F.R. § 3.159(c) (2007). Accordingly, the case is REMANDED for the following action: 1. Obtain all of the veteran's VA medical records not currently associated with the claims file and associate them therewith. 2. Schedule the veteran for an appropriate examination to determine the current extent and severity of his service-connected traumatic arthritis of the lumbar spine. The claims folder must be made available to the examiner for review as part of the examination. All indicated tests and studies should be undertaken, to include range of motion testing. The examiner is requested to: a) Describe applicable loss of motion (flexion, extension and rotation) of the lumbar spine attributable to service- connected traumatic arthritis, as distinguished to the extent possible from any loss due to aging; b) determine whether the veteran's lumbar spine exhibits weakened movement, excess fatigability, or incoordination attributable to his service-connected disability and, if feasible, these determinations should be expressed in terms of the degree of additional range of motion lost; and c) if neurological involvement involving the lumbar spine is found, the examiner should identify the nerve(s) involved and indicate whether the degree of paralysis is complete or incomplete. If incomplete, whether the degree is moderate, moderately severe, or severe. Complete rationale for the opinions expressed should be included in the examination report. 3. After completion of the foregoing, re- adjudicate the claim on appeal based on consideration of all of the evidence of record, both prior and current rating criteria and Mittleider, if warranted. If the benefit sought on appeal is not granted, the veteran and his representative should be provided with an appropriate supplemental statement of the case and should be afforded an opportunity to respond thereto. 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). _________________________________________________ M. E. LARKIN 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).