Citation Nr: 1304469 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 07-25 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an extraschedular evaluation in excess of 10 percent for service-connected chronic low back strain with degenerative disc disease at L5-S1, spondylolysis L5, and grade I anterior spondylolisthesis L5-S1. REPRESENTATION Appellant represented by: Eric A. Gang, Esquire WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from November 1988 to October 1996. This matter comes to the Board of Veterans' Appeals (Board) from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which continued a previously assigned noncompensable rating for a chronic low back strain. In an October 2007 rating decision, the RO increased the rating from noncompensable to 10 percent for the Veteran's service-connected low back disability, effective August 22, 2005, the date of the claim for increase; however, the claim for a higher evaluation remained before the Board because the rating assigned for the period remained less than the maximum available benefit awardable for the period. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In November 2008, the Veteran was afforded a Travel Board hearing. A transcript of the testimony offered at this hearing has been associated with the record. In a July 2011 decision, the Board denied the Veteran's claim of entitlement to an evaluation in excess of 10 percent for service-connected chronic low back strain with degenerative disc disease at L5-S1, spondylolysis L5, and grade I anterior spondylolisthesis L5-S1. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a February 2012 Joint Motion for Partial Remand (joint motion), the appellant and the Secretary moved to partially vacate the Board decision. Specifically, the joint motion moved to vacate only that portion of the Board decision that declined to refer the claim to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). Pursuant to the joint motion, the Court, in a February 2012 Order, vacated only the part of the Board's decision that declined referral for extraschedular consideration and dismissed the appeal with respect to schedular evaluation. Accordingly, the issue is characterized as such on the cover page of this decision. The issue of entitlement to service connection for sleep apnea, to include as secondary to service-connected chronic low back strain with degenerative disc disease at L5-S1, spondylolysis L5, and grade I anterior spondylolisthesis L5-S1 has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it and it is referred to the AOJ for appropriate action. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the Veteran if further action is required. REMAND Following the issuance of the Court's Order, the Veteran's attorney submitted evidence and argument. See April 18, 2012, letter. The Veteran's attorney particularly requested that the evidence be initially considered by the Agency of Original Jurisdiction (AOJ). See 38 C.F.R. § 20.1304(c) (2012). Thus, the evidence must be referred to the RO for consideration and the issuance of a Supplemental Statement of the Case (SSOC), if applicable. 38 C.F.R. § 19.31 (2012). Also, the Board notes that in the April 2012 letter, the Veteran's attorney noted that the Veteran's low back disability had worsened in severity since his last examination in April 2009, particularly asserting that the Veteran's low back disability had manifested by radiculopathy. When it is indicated that the severity of a service-connected disability has increased since the most recent rating examination, an additional examination is appropriate. See Caffrey v. Brown, 6 Vet. App. 377 (1995); Green v. Derwinski, 1 Vet. App. 121 (1991). Accordingly, a new VA examination is in order. Accordingly, the case is REMANDED for the following action: 1. The AOJ should contact the Veteran and obtain the names, addresses, and approximate dates of treatment of all VA and non-VA medical care providers who treated the Veteran for his service-connected low back disability since approximately April 2010. Of particular interest are any possibly outstanding Detroit VA Medical Center (VAMC) treatment records. After the Veteran has signed any appropriate releases, any such records should be obtained and associated with the claims folder. All attempts to procure records should be documented in the claims file. If the AOJ cannot obtain any records identified by the Veteran, a notation to that effect should be inserted in the claims file. The Veteran and his attorney are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit any records for VA review. 2. After the development directed in paragraph 1 has been completed to the extent possible, the Veteran should be scheduled for a VA spine examination by an appropriate examiner for an opinion as to the current nature and extent of his service-connected low back disability. The examiner should identify all present manifestations of the service-connected disability, including any evidence of a related neurological disability (i.e., lower extremity radiculopathy). Complete range of motion and X-ray studies must be provided with discussion as to any additional limitation of motion due to pain, weakness, fatigability, incoordination or pain on movement of a joint, including use during flare-ups. The opinion should address whether the Veteran has experienced any incapacitating episodes due to his low back disability. In this regard, the examiner should be advised that the regulation defines an "incapacitating episode" as one requiring bed rest and treatment by a physician. If the examiner finds there are any neurological disabilities, an opinion, to the extent possible, should be provided as to the date of onset and the severity thereof. The examiner should also provide a full description of the effects of the service-connected disability (exclusive of any nonservice-connected disabilities) upon the Veteran's employment and daily life. Particular emphasis should be placed upon any manifest limitation of activity, interference with employment and any periods of hospitalization alleged by the Veteran. The claims folder must be made available to the examiner for review in conjunction with the examination. A notation to the effect that this record review took place should be included in the report. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 3. After the development requested above has been completed to the extent possible, the record should again be reviewed. The AOJ should specifically consider whether the case should be referred for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) and include an explanation for its decision. If the benefit sought on appeal remains denied, then the Veteran and his attorney should be furnished a SSOC and be given the opportunity to respond thereto before this case is returned to the Board. The Vetearn has the right to submit additional evidence and argument on this matter. 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. 2012). _________________________________________________ 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) (2012).