Citation Nr: 1114535 Decision Date: 04/13/11 Archive Date: 04/21/11 DOCKET NO. 08-32 071 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for the service-connected thoracic spine strain. 2. Entitlement to an evaluation in excess of 10 percent for the service-connected cervical spine strain. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from July 2002 to July 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the RO, which reduced the ratings for the service-connected cervical and thoracic spine disabilities from 10 percent to noncompensable effective on December 8, 2007. The matter of the propriety of the reductions was previously before the Board in August 2010. The Board determined that the reductions were not based on examination findings showing sustained improvement of either service-connected disability and restored the separate 10 percent ratings. (Note: this was effectuated by the RO in October 2010). The issues involving ratings in excess of the restored 10 percent were remanded to the Appeals Management Center (AMC) for further development and adjudication. The claims have been returned to the Board; however, they are still not ready for appellate disposition. The appeal is being remanded to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action is required on his part. REMAND As noted, the claims for increase were previously before the Board in August 2010. At that time, the Board determined that additional notice and evidentiary development was necessary. As the remand orders of the Board were not complied with, further remand is mandated due to the RO's failure to follow the directives in the Board's remand. Stegall v. West, 11 Vet. App. 268 (1998). In this regard, the RO was instructed to schedule the Veteran for a VA examination in order to determine the current severity of the service connected thoracic and cervical spine strains. It appears that an attempt was made to schedule the Veteran for VA examination. The RO was notified the Veteran failed to report for VA examination on January 24, 2011. In February 2011, the Veteran indicated that he did not receive notice of the first scheduled VA examination as he had recently moved. He then indicated that he did receive a second notice; however, he was unable to attend as he had just started a new job. He tried to reschedule the appointment and was told that he had to contact the RO for a new appointment, which he did. He stated that he was instructed to wait for a new examination date, which he did not receive. Finally, he asserts that he learned of the missed appointment when he received a copy of the February 2011 Supplemental Statement of the Case (SSOC). The Veteran requested that the VA examination be rescheduled as his service-connected disabilities had continued to worsen, notably his cervical spine produced tension in his neck and headaches. He further reports having sharp pains between his shoulder blades, as well as numbness and tingling. Therefore, as no current VA examination was rendered, the Board's remand instructions were not followed. Id. Thus, the Board is still not able to make a fully informed decision with respect to the claim presented. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). Moreover, where there is evidence of a material change in the Veteran's conditions or as in the instant case, when the Veteran asserts that the service-connected disabilities in question have undergone an increase in severity since the time of his last VA examination, the prior VA examination report may be inadequate for rating purposes and a new VA examination is required. 38 C.F.R. § 3.327(a); See Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). The Board cannot ascertain to what extent the disabilities have increased in severity, if at all, without a new VA examination. The Board is not free to substitute its own judgment for that of such an expert. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Finally, the Veteran submitted a lay statement from his girlfriend in support of his claims. The Veteran did not include a waiver of initial RO adjudication of the newly submitted evidence. As such, the appeal must also be remanded for the evidence to be reviewed by the RO and for the issuance of an SSOC. 38 C.F.R. § 20.1304(c); Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) Accordingly, this case must again be remanded to effectuate the evidentiary development necessary to fully and fairly adjudicate the Veteran's claims. The RO is directed to the specific development instructions delineated in the numbered paragraphs below. 1. The RO should schedule the Veteran for an orthopedic examination to ascertain the current severity of the service- connected thoracic and cervical spine disabilities. The Veteran's claims folder must be available to, and reviewed by, the examiner(s) in conjunction with the examination(s). The examiner(s) should indicate that the claims folder was reviewed. All indicated studies should be performed. All pertinent clinical findings and the complete rationale for all opinions expressed should be set forth in a written report. The examiner should provide data as to the range of motion for the cervical and thoracic spine, specifically identifying any excursion of motion accompanied by pain. The examiner should also identify any objective evidence of pain and assess the extent of any pain, and comment on the extent of any incoordination, weakened movement and excess fatigability on use. The examiner should also address whether the disability is productive of ankylosis, muscle spasm, or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The examiner should also express an opinion concerning whether there would be additional limits of functional ability on repeated use or flare-ups (if the Veteran describes flare-ups). The examiner should also specifically identify any evidence of neuropathy due to the service-connected disability, to include characteristic pain, demonstrable muscle spasm, and absent ankle jerk. In addition, the examiner should quantify the number of weeks of incapacitating episodes (a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician) over the past 12 months. 2. The Veteran must be given adequate notice of the date and place of any requested examination. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for a scheduled VA examination without good cause shown may have adverse effects on his claims. 38 C.F.R. § 3.655. 3. The RO should ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. If the ordered action is determined to have not been undertaken or to have been taken in a deficient manner, the RO should take appropriate corrective action. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims on appeal in light of all the evidence of record, including the statement from the Veteran's girlfriend. Adjudication of the claims for higher evaluations should include specific consideration of whether a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is appropriate and whether assignment of a higher rating on an extraschedular basis is warranted under 38 C.F.R. § 3.321(b)(1). Hart v. Mansfield, 21 Vet. App. 505 (2007). If any benefits sought on appeal remains denied, the RO must furnish to the Veteran and his representative with a fully responsive Supplemental Statement of the Case and afford them a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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). These claims 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). _________________________________________________ STEPHEN L. WILKINS 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).