Citation Nr: 1007180 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-02 241 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to a rating in excess of 10 percent for a lumbar spine disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. C. Dale, Associate Counsel INTRODUCTION The Veteran had active duty service from March 1968 to March 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND This appeal is remanded to obtain a VA examination report that is adequate for the purposes of adjudication. See Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran's back disability has been evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2009), intervertebral disc syndrome. In evaluating a disability under this code section, consideration must also be given to such findings as painful motion, functional loss due to pain, additional disability during flare-ups, weakness, and excess fatigability. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); 38 C.F.R. §§ 4.40, 4.45 (2009). The Veteran was afforded a VA/QTC examination for his back disability in January 2007. The examiner interviewed the Veteran and performed a clinical examination of his back. In his substantive appeal, the Veteran asserted that the January 2007 VA/QTC examination report was inaccurate since it did not account for his limitations during flare-ups. See id. Likewise, the Veteran's representative referred to a December 2007 private physical therapy functional capacity evaluation report detailing Veteran's functional limitation due to his back disability and also contended that the VA/QTC examination was inadequate as it did not account for flare-up episodes of back pain. After considering the Veteran's contentions, the Board finds that another VA spine examination is necessary. Barr, supra. The VA spine examination will be governed by the following considerations. The claims file must be made available for review; and the examiner must acknowledge receipt and review of the claims file in the examination report. The examiner must consider the December 2007 physical therapy findings. He or she will also interview the Veteran about the present severity of his back disability and limitations in his range of motion of the thoralumbar spine during flare-up episodes of back pain. A clinical examination including all necessary tests and studies are to be conducted. After reviewing the entire record and present clinical findings, the examiner must opine on the Veteran's limitation of motion of the thoralumbar spine during flare-ups. Accordingly, the case is REMANDED for the following action: 1. Ascertain if the Veteran has received any VA, non-VA, or other medical treatment for his back disability, that is not evidenced by the current record. The Veteran should be provided with the necessary authorizations for the release of any treatment records not currently on file. The AMC/RO should then obtain these records and associate them with the claims folder. 2. Schedule the Veteran for a VA spine examination. The claims file and a copy of this remand must be made available to the examiner for review. The examiner will indicate receipt and review of the claims file in any report generated. The examiner will interview the Veteran about his present back pain symptoms and flare- up episodes of back pain. A full clinical examination must be performed with all appropriate tests and studies. After reviewing the record and present clinical findings, the examiner must opine as to the Veteran's limitation of motion during flare-ups of back pain. If the examiner cannot form such an opinion without resort to speculation, he or she should so state and provide an explanation as to why a non-speculative opinion cannot be made. 3. If the Veteran fails to report to the scheduled examination, obtain and associate with the claims file (a) copy(ies) of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 4. To help avoid future remand, the VA must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268 (1998). 5. After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the Veteran's claim on appeal. If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case, and afford them the appropriate time period for response before the claims file is returned to the Board for further 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). _________________________________________________ MARY GALLAGHER 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).