Citation Nr: 1310656 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-34 665 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a rating in excess of 10 percent for thoracolumbar strain. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from October 1997 to September 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, which continued the 10 percent rating assigned for thoracolumbar strain. The claim was remanded by the Board in September 2010 to afford the Veteran a videoconference hearing. The requested hearing was conducted before the undersigned Veterans Law Judge in March 2011. A transcript of the hearing is of record. The Board subsequently remanded the claim again in June 2011. Additional evidence from a private treatment facility was received at the Board after certification of the Veteran's claim. Prior to the Board's receipt of this evidence, the Veteran waived his right to have the RO consider the additional evidence; however, in light of the REMAND below, the originating agency will have an opportunity to review the evidence before the Board decides this appeal. REMAND The Board remanded the claim in June 2011 in order to obtain additional VA treatment records and to afford the Veteran another VA examination. Thereafter, the Veteran underwent a VA examination in August 2011. The Board notes that the August 2011 VA examination was conducted by the same VA examiner who conducted the October 2008 VA examination. At the time of the August 2011 VA examination, physical examination of the Veteran's lumbar spine revealed forward flexion to 80 degrees and extension to 30 degrees. Subjective complaints of pain with flexion and extension were reported, but there was no objective evidence of pain. Private treatment records from the Pain Management Center at Morristown Medical Center dated between May 2010 and January 2012 consistently reveal lumbar range of motion limited due to pain with forward flexion to approximately 20 degrees and virtually no extension. Given the discrepancy in findings reflected in the August 2011 VA examination and these private treatment records, the Board finds that the claim should be remanded in order to schedule the Veteran for another VA examination with a different VA examiner. Another VA examination is also warranted given the fact that the August 2011 VA examiner diagnosed lumbar radiculopathy, but failed to specifically identify the nerve or nerves that are affected by the Veteran's service-connected back disability, and also failed to discuss the severity of the impairment caused by the affected nerve(s) (i.e., whether there is any paralysis of the affected nerve, and if so whether it is complete or incomplete, and whether such paralysis is mild, moderate or severe). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). As the claim is being remanded for the foregoing reasons, additional VA treatment records should also be obtained. The Veteran is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failing to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2012). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claim, to include the Veteran's treatment records from the East Orange and Lyons Campuses of the VA New Jersey Health Care System, dated since March 2012. 2. Then, arrange for the Veteran to be scheduled for a VA examination by an examiner different from the one who conducted the October 2008 and August 2011 examinations for the purpose of ascertaining the severity of the Veteran's service-connected back disability and all associated neurological impairment. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. Any indicated studies are to be performed. The RO or the AMC should ensure that the examiner provides all information required for rating purposes. In particular, the examiner should determine whether there is any neurological impairment due to the Veteran's service-connected back disability. If neurological impairment is found, the examiner should specifically identify the nerve or nerves that are affected by the Veteran's service-connected back disability, and discuss the severity of the impairment caused by the affected nerve(s). In this regard, the examiner should state whether there is any paralysis of the affected nerve, and if so whether it is complete or incomplete, and whether any incomplete paralysis is mild, moderate or severe. The rationale for all opinions expressed should also be provided. 3. Undertake any other indicated development. 4. Finally, readjudicate the claim. If any benefit sought on appeal is not granted to the Veteran's satisfaction, furnish the Veteran a supplemental statement of the case and provide an appropriate period of time to respond. The case should then be returned to the Board for further appellate action, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals This REMAND must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the Court 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).