Citation Nr: 1006972 Decision Date: 02/25/10 Archive Date: 03/05/10 DOCKET NO. 08-11 453 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 20 percent disabling for post-operative residuals, lumbar disc surgery with radiculopathy, bilateral lower extremities. ATTORNEY FOR THE BOARD Megan L. Engebretson, Associate Counsel INTRODUCTION The Veteran had active service from June 1968 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 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 Veteran seeks entitlement to a rating in excess of 20 percent disabling for post-operative residuals, lumbar disc surgery with radiculopathy, bilateral lower extremities. The Veteran contends that his condition is more severe than that contemplated by his current rating scheme. The Veteran's disability was last examined in February 2007. The duty to conduct a contemporaneous examination is triggered when the evidence indicates that there has been a material change in disability or that the current rating may be incorrect. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a Veteran is entitled to a new examination after a 2 year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). The Veteran indicated that his condition was worse in a statement dated in November 2007. Additionally, in March 2008 he submitted a copy of an employment performance plan which he indicated reflected the extent of the affect his condition had on his performance on work. This plan indicated that his performance had deteriorated. A May 2008 statement from the Veteran indicated that he had been terminated from his job due to decreased performance and was now unemployed. These complaints and events evidence a worsening of the Veteran's condition and a contemporaneous examination is necessary to evaluate the nature and extent of his current disability. Accordingly, the case is REMANDED to the RO/AMC for the following action: 1. The Veteran should be afforded a VA examination with the appropriate specialist(s) to determine the current level of disability due to his service- connected spinal disorder. The claims folder should be made available to the examiner for review before the examination. The examiner should set forth all orthopedic symptomatology associated with the Veteran's spinal disorder, including loss of range of motion during flare-ups, and any associated neurologic symptomatology, assuming such symptomatology exists. a) The orthopedic examination should include range of motion testing of the thoracolumbar spine. The examiner should also 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 lumbar spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss or any additional loss of range of motion due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. (b) The neurological examination should identify all neurological manifestations and symptomatology of the Veteran's extremities and offer an opinion as to whether the Veteran has any separately ratable neurological disability(s) as a manifestation of her service-connected lumbar spine disability. 2. Thereafter, readjudicate the Veteran's claim for an initial rating in excess of 20 percent disabling for post-operative residuals, lumbar disc surgery with radiculopathy, bilateral lower extremities and entitlement to TDIU. If the benefit sought on appeal is not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond. If the Veteran perfects an appeal as to the TDIU claim, it should also be returned to the Board for appellate consideration. 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. 2009). _________________________________________________ J. A. MARKEY 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) (2009).