Citation Nr: 0811197 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 05-39 301 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent for right thoracic scoliosis. 2. Entitlement to an initial evaluation in excess of 20 percent for chronic cervical musculoligamentous strain. ATTORNEY FOR THE BOARD Elizabeth Jalley, Associate Counsel INTRODUCTION The veteran served on active duty from September 1989 to July 1994. This case comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The record reflects that the veteran submitted additional evidence to the Board in February 2007 accompanied by a waiver of initial review by the agency of original jurisdiction. See 38 C.F.R. § 20.1304 (2007). 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 Board notes that the veteran has not had a VA examination since September 2005. At the time of this examination, the veteran's cervical spine range of motion was limited to 16 degrees flexion, which is slightly greater than the 15 degrees limitation of flexion needed for the veteran to receive a 30 percent disability rating for his cervical spine disability. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. Since this time, the veteran's VA medical records indicate that he has sought much treatment for his cervical and thoracic spine disabilities. Furthermore, the veteran's VA medical records reflect that he has complained of and sought treatment for neurologic symptoms that he experiences in his back and neck. The Board notes that the veteran's prior VA examinations have not tested for neurologic symptoms. The Board therefore believes that a remand is warranted. Furthermore, the Board does not believe that the veteran has been adequately informed of both the old and the new evaluation criteria that are potentially applicable to his claim. Considering that the veteran does not have a representative, it does not appear that the Board can attribute to the veteran actual knowledge of the relevant rating criteria. Given the recent decision of the recent decision in Vazquez-Flores v. Peake, -- Vet. App. --, No. 05- 0355, 2008 WL 239951 (Jan. 30, 2008), the Board believes that further notification should be undertaken while this case is being further developed on remand. Accordingly, the case is REMANDED for the following action: 1. The AMC must provide notice as required by Vazquez-Flores v. Peake, -- Vet. App. --, No. 05-0355, 2008 WL 239951 (Jan. 30, 2008). The veteran should specifically be provided with both the old and the new rating criteria under Diagnostic Code 38 C.F.R. § 4.71a, for evaluating musculoskeletal system disorders of the spine, which became effective September 26, 2003. 2. The veteran must be scheduled for orthopedic and neurologic examinations to determine the severity of his service- connected thoracic and cervical spine disabilities. The claims file must be made available to and reviewed by the examiner in conjunction with the examination. Any indicated diagnostic tests and studies must be accomplished. The examiner must review the results of any testing prior to completion of the report. All pertinent symptomatology and findings must be reported in detail. The report of the examination should be comprehensive and include a detailed account of all manifestations of the service-connected thoracic and cervical spine disabilities. In particular, the examiner must report any functional limitation found and range of motion expressed in degrees, with standard ranges provided for comparison purposes, must be accomplished. The examiner must also address any neurologic abnormalities related to the veteran's service-connected disabilities. The examiner must render specific findings as to whether during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the veteran's thoracic and cervical spine disabilities. In addition, the examiner should indicate whether, and to what extent, the veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. The examiner should express such functional loss in terms of additional degrees of limitation of motion (beyond that clinically shown). Additionally, the examiner must comment upon the impact of any functional impairment due to the veteran's service- connected disabilities upon his employment. 3. The RO must notify the appellant that it is his responsibility to report for the above noted examinations and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2007). In the event that the appellant does not report for an aforementioned examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 4. After the above has been completed, the RO must readjudicate the issues on appeal, taking into consideration all evidence added to the file since the most recent VA adjudication. If an issue on appeal continues to be denied, the veteran must be provided a Supplemental Statement of the Case. The veteran must then be given an appropriate opportunity to respond. Thereafter, the case must be returned to the Board for appellate review. 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). _________________________________________________ F. JUDGE FLOWERS 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).