Citation Nr: 1048024	
Decision Date: 12/27/10    Archive Date: 01/03/11

DOCKET NO.  99-01 517	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, 
North Carolina


THE ISSUE

Entitlement to an evaluation in excess of 20 percent for service-
connected low back disability, characterized as history of 
spondylosis, L5, with mechanical low back pain.


REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady, 
Attorney at Law


ATTORNEY FOR THE BOARD

M. Peters, Associate Counsel




INTRODUCTION

The Veteran had active duty service from May 1987 to February 
1989.

This matter comes before the Board of Veterans' Appeals (Board) 
on appeal from a September 1997 rating decision by the Department 
of Veterans Affairs (VA) Regional Office (RO), which denied an 
evaluation in excess of 10 percent for the Veteran's low back 
disability.  During the appeal, the RO increased the evaluation 
of the Veteran's low back disability to 20 percent-effective 
January 30, 1997, the date on which the Veteran filed his claim 
for increase-in a December 2001 supplemental statement of the 
case.  The Board has previously remanded this case in June 2000, 
August 2005, and December 2006.

The Board rendered a decision on this issue in June 2009, at 
which time the Board denied an increased evaluation.  The Veteran 
timely appealed that decision to the United States Court of 
Appeals for Veterans Claims (Court).  In a June 2010 order, the 
case was remanded back to the Board for the reasons stated in the 
Joint Motion for Remand, in which both the Secretary of Veterans 
Affairs (Secretary) and the appellant agreed further development 
was required.  The case has been returned to the Board at this 
time for further review in compliance with the June 2010 order.

The issue of entitlement to compensation for heart disease 
was deferred in a May 2010 rating decision, and does not 
appear to have yet been adjudicated by the Agency of 
Original Jurisdiction (AOJ).  Thus, it has been raised by 
the record, but not yet adjudicated, and therefore, the 
Board does not have jurisdiction over it.  It is referred 
to the AOJ for appropriate action.  

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

The Board notes that the Veteran's last VA examination was in 
August 2007, more than three years ago.  Consequently, the Board 
finds that a new examination is warranted to determine the 
current severity of the Veteran's low back disability so that it 
may properly rate the disability.  See Caffrey v. Brown, 6 Vet. 
App. 377, 381 (1995).

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA orthopedic 
examination in order to determine the current 
nature and severity of the Veteran's low back 
disability.  The claims folder must be made 
available to and be reviewed by the examiner 
in conjunction with the examination.  All 
tests deemed necessary should be conducted.

After examination of the Veteran and review 
of the claims file, the VA examiner should 
specifically comment on the following:

(a)	Whether there is any ankylosis, 
either favorable or unfavorable, of the 
Veteran's lumbar spine.

(b)	The range of motion of the Veteran's 
lumbar spine, and state whether any 
noted limitation thereof is slight, 
moderate or severe.

(c)	Whether the Veteran has lumbosacral 
strain, and state whether such is more 
properly characterized as:
1.	With muscle spasm on extreme 
forward bending, loss of lateral 
spine motion, unilateral, in 
standing position; or,
2.	Severe, as demonstrated by listing 
of the whole spine to the opposite 
side; a positive Goldthewaite's 
sign; marked limitation of forward 
bending in standing position; loss 
of lateral motion with 
osteoarthritic changes; or 
narrowing or irregularity of joint 
space, or some of the above with 
abnormal mobility on forced 
motion.

(d)	Whether the Veteran has 
intervertebral disc syndrome (IVDS), 
and discuss whether and how often the 
Veteran has incapacitating episodes, 
which are defined as episodes of 
physician-prescribed bed rest within 
the past 12-month period.  If 
intervertebral disc syndrome is found, 
the examiner should address whether 
there are any associated objective 
neurological abnormalities, and their 
severity.  The VA examiner should also 
state whether any IVDS is most properly 
characterized as: 
1.	Moderate, described as recurring 
attacks;
2.	Severe, described as recurring 
attacks with intermittent relief; 
or,  
3.	Pronounced, described as 
persistent symptoms compatible 
with sciatic neuropathy with 
characteristic pain and 
demonstrable muscle jerk, absent 
ankle jerk, or other neurological 
findings appropriate to site of 
diseased disc, with little 
intermittent relief.

A rationale for any opinion expressed must be 
provided.  

2.  Following the above development, the 
RO/AMC should review the claims file and 
readjudicate the Veteran's claim for an 
evaluation in excess of 20 percent for his 
service-connected low back disability.  The 
Board notes that, as the Joint Motion for 
Remand instructs, the RO/AMC should 
specifically discuss entitlement to a higher 
evaluation under both the old and the new 
regulations.  If the benefit sought on appeal 
remains denied, the Veteran and his 
representative should be furnished a 
supplemental statement of the case and given 
the opportunity to respond thereto before the 
case is returned to the Board.

The Veteran has the right to submit additional evidence and 
argument on the matter 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).



_________________________________________________
A. C. MACKENZIE
Acting 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) (2010).