Citation Nr: 1010010 Decision Date: 03/16/10 Archive Date: 03/24/10 DOCKET NO. 03-13 580 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an increased evaluation for the orthopedic manifestations of degenerative disc disease (DDD), L4-L5, rated 20 percent disabling. REPRESENTATION Appellant represented by: Allan T. Fenley, Attorney ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran had active military service from May 1970 to March 1971. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In April 2008 the Board rendered a decision that, in relevant part, denied a rating in excess of 20 percent for the orthopedic manifestations of the Veteran's DDD of the lumbar spine (although it granted a separate compensable rating for sciatic neuropathy of the right lower extremity). The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court); the appeal also included various other issues that were addressed in the Board's April 2008 decision. In March 2009 the parties filed a Joint Motion for Partial Remand ("Joint Motion"). In a July 2009 Order ("Order"), entered pursuant to the Joint Motion, the Court vacated that portion of the Board's decision that denied entitlement to a rating in excess of 20 percent for the Veteran's DDD and remanded the matter to the Board. The Court dismissed the Veteran's appeal as to all other issues. A copy of the Court's Order was placed in the claims file. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In its remand the Court essentially directed VA to conduct further development in accordance with the terms of the Joint Motion. Pursuant to the Joint Motion, the parties agreed that a January 2008 VA examination of the Veteran's back disability was inadequate. Specifically, the examiner stated that he was unable to apportion the Veteran's symptoms between his original service connected back disability and a subsequent on the job back injury that occurred in April 2007. However, the examiner then attributed certain symptoms, including the Veteran's inability to work, to the April 2007 injury. The examiner was also unable to perform repetitive motion testing due to the Veteran's April 2007 back injury. Although not specifically referenced in the Joint Remand, it also appears that the examiner used a definition of an "incapacitating episode" of intervertebral disc syndrome that differed from the definition set forth in 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Specifically, the examiner indicated that the Veteran had an incapacitating episode of intervertebral disc syndrome that lasted from April 2007 to the date of the examination in January 2008, a period of longer than 6 weeks as required for a 60 percent evaluation, because the Veteran was unable to work. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The examiner attributed this "incapacitating episode" to the Veteran's April 2007 on the job injury. It is unclear whether this "incapacitation" was ordered by a physician. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be scheduled for a new VA examination to determine the current severity of the orthopedic manifestations of the Veteran's DDD, L4- L5. The examiner must review the claims file and state that this was done in his or her report. If possible, the examiner should distinguish between the level of disability caused by the Veteran's service connected DDD, L4-L5, and any natural progression thereof, and any additional disability that was caused by an unrelated subsequent injury, including the Veteran's April 2007 on the job injury. If the effects of these injuries cannot be separated, the examiner should specifically so state and should explain why they cannot be separated. If the examiner concludes that only certain effects of the service connected injury and the subsequent injury cannot be separated, he or she should clearly explain which symptoms can be distinguished and which symptoms cannot and provide a full rationale for his or her conclusion in this regard. The examiner should also indicate whether the Veteran experienced any episodes of intervertebral disc syndrome, defined as "a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest required by a physician and treatment by a physician" and, if so, the length of these episodes. Furthermore, the examiner should indicate the Veteran's residual functional capacity with respect to activities of daily living and employment activities. Again, to the extent possible, the examiner should explain the degree to which any deficits in these areas are related to the Veteran's DDD, L4-L5 or any natural progression thereof, as opposed to subsequent trauma. 2. After completion of the above development, the Veteran's claim should be readjudicated. If the determination remains less than fully favorable to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case (SSOC) and given an opportunity to respond thereto. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. 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. 2009) _________________________________________________ MICHAEL D. LYON 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).