Citation Nr: 1127204 Decision Date: 07/21/11 Archive Date: 07/29/11 DOCKET NO. 10-17 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 60 percent for lumbar spine spondylosis and degenerative disc disease. 2. Entitlement to a total disability rating, for compensation purposes, based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: John S. Berry, Attorney at law ATTORNEY FOR THE BOARD C. R. Olson, Counsel INTRODUCTION The Veteran had active service from December 1987 to September 1988 and from February 1991 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND In May 2009, the RO made a very detailed and thorough rating decision considering the rating criteria in effect when the Veteran filed his claim and the subsequent criteria. The highest schedular evaluation was awarded. However, neither the rating decision nor the statement of the case nor anything else show consideration of extraschedular evaluation. Since the highest schedular rating was granted, extraschedular evaluation should be considered. This should be done by the agency or original jurisdiction (AOJ) in the first instance. Moreover, the March 2007 VA examination used to rate the disability was not adequate for rating purposes. It was reported that "Flexion was 75 degrees with pain." It is not clear from that statement whether pain was present throughout the arc, began somewhere along the arc, or appeared at the end of the arc. The United States Court of Appeals for Veterans Claims (Court) has repeatedly held that the end point of motion must be measured as the point where pain begins. We cannot tell from this examination report where pain began. Thus, an adequate examination is required. The RO recognized that the facts in this case raised a TDIU claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The RO sent the Veteran a claim form for TDIU and provided notice in accordance with the Veterans Claims Assistance Act and subsequent legislation. The September 2009 rating decision and statement of the case indicate that the claim was denied because the Veteran did not return the claim form or provide the information therein. He subsequently submitted the form, but the RO did not issue a supplemental statement of the case or otherwise readjudicate the claim. The claim should be readjudicated in light of the receipt of the requested claim form and information therein. Accordingly, the case is REMANDED for the following action: 1. The Veteran's VA medical records from 2000 to the present should be printed and the printed copy associated with the claims folder. 2. The Veteran should be scheduled for a VA examination of his spine. The claims folder should be made available to the examiner for review in conjunction with the examination. Any tests or studies deemed necessary to respond to the following questions should be done. a. What is the range of thoracolumbar spine motion, describing any limiting factors. If the veteran experiences pain on motion, the physician should express an opinion as to the credibility of the complaints and specify the evidence on which he bases his assessment. The doctor should report at what point in the range of motion any pain appears and how it affects motion. b. Describe all functional loss affecting the thoracolumbar spine including more movement than normal (instability), any locking, weakened movement, fatigability and lack of endurance, incoordination, swelling, deformity, atrophy of disuse, disturbance of locomotion or interference with weight bearing. If possible, the examiner should describe the functional impairment in terms of the degree of additional range-of-motion lost. If the examiner cannot describe the functional impairment in terms of the degree of additional range-of-motion lost, he should explain why. c. The examiner should describe all neurologic deficits associated with the service-connected spine disability. If there are none, he should so state. If there are associated neurologic deficits, the examiner should identify the nerve involved and provide an opinion as to whether it is neuritis, neuralgia, or incomplete or complete paralysis. He should also provide an opinion as to whether the disability is mild, moderate, moderately severe, or severe. d. The examiner should provide an opinion as to whether the service-connected spine disability and any associated neurologic deficits prevent the Veteran from engaging in substantially gainful employment. Please discuss the reasons for the opinion. 3. Thereafter, the AOJ should readjudicate these claims in light of any evidence added to the record. a. The AOJ should specifically consider and discuss whether the service-connected back disability should be referred for extraschedular evaluation. b. The AOJ should specifically consider and discuss whether the TDIU claim should be referred for extraschedular evaluation. If any benefit sought on appeal remains denied, the appellant and his representative should be provided a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Subsequently, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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. 2010). _________________________________________________ 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) (2010).