Citation Nr: 0811058 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 01-05 152 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased disability rating for residuals of a fracture of the thoracic spine at T-7 (thoracic spine disability), currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD John Z. Jones, Counsel INTRODUCTION The veteran served on active duty from September 1972 to August 1974. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a May 2000 rating decision of the Roanoke, Virginia, Department of Veterans Affairs (VA) Regional Office (RO). The veteran testified at a Central Office hearing before the undersigned Veterans Law Judge in January 2004. The Board remanded the veteran's case for further development in July 2004. Unfortunately, the appeal is again REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND In July 2004, the Board remanded the case to the RO, in part, to schedule the veteran for a VA examination to determine the severity of his service-connected thoracic spine disability. Specifically, the Board instructed the RO to conduct the following development: 4. After associating all outstanding records with the claims folder pursuant to the above-requested development, the RO should schedule the veteran for VA examination to determine the nature, extent, frequency and severity of his orthopedic and neurologic impairment related to service-connected thoracic spine disability. The claims folder must be made available to the examiner for review in conjunction with the examination, and the examiner should acknowledge such review in the examination report. With respect to the veteran's orthopedic pathology, the examiner should identify and express an opinion as to the severity of any orthopedic manifestations (including decreased range of motion and the presence or absence of muscle spasm) of the veteran's thoracic spine. The examiner should conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion. In rendering this opinion, the orthopedic examiner should fully describe any pain, weakened movement, excess fatigability, and incoordination present in the thoracic spine. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the thoracic spine. If the examiner is unable to provide the requested information with any degree of medical certainty, the examiner should clearly indicate that. In addition, if possible, the examiner should state whether the thoracic spine disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes. With respect to the veteran's neurological impairment, the examiner should also identify any neurological symptoms and express an opinion as to their severity. The examiner must set forth the complete rationale underlying any conclusions drawn or opinions expressed, to include, as appropriate, citation to specific evidence in the record, in a legible report. The record reflects that the veteran was afforded a VA examination in April 2006; however, a review of the clinical findings shows that the focus of the examination was on the veteran's neurological complaints. There are no findings addressing the orthopedic manifestations of the veteran's thoracic spine disability. For example, the April 2006 VA examination did not provide range of motion measurements, even if normal, for the back. Nor did the examiner describe any pain, weakened movement, excess fatigability, and incoordination present in the thoracic spine. The United States Court of Appeals for Veterans Claims (the Court) has held that RO compliance with a remand is not discretionary, and that if the RO fails to comply with the terms of a remand, another remand for corrective action is required. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED to the RO (via the AMC) for the following action: 1. Schedule the veteran for a VA examination to determine the current severity of the service-connected thoracic spine disability. His claims folder should be available to and reviewed in conjunction with the examination. All indicated tests, studies and x-rays should be performed and all findings reported in detail. The examiner should identify and express an opinion as to the severity of any orthopedic manifestations (including decreased range of motion and the presence or absence of muscle spasm) of the veteran's thoracic spine. The examiner should conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion. In rendering this opinion, the orthopedic examiner should fully describe any pain, weakened movement, excess fatigability, and incoordination present in the thoracic spine. To the extent possible, the examiner should express any functional loss in terms of additional degrees of limited motion of the thoracic spine. If the examiner is unable to provide the requested information with any degree of medical certainty, the examiner should clearly indicate that. In addition, if possible, the examiner should state whether the thoracic spine disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes. 2. Review the report of the VA examination to ensure it contains the information sought to properly rate the thoracic spine disability at issue. If not, take corrective action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Then readjudicate the claim in light of the additional evidence obtained. If it is not granted to the veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to respond to it. The purpose of this REMAND is to obtain additional evidence and ensure that the veteran is afforded all due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. No action is required by the veteran until contacted. The veteran 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). _________________________________________________ DEBORAH W. SINGLETON 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).