Citation Nr: 1310664 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 10-45 108 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to a rating in excess of 20 percent for herniated nucleus pulposus L4-5, right (exclusive of a period of a 100 percent temporary total rating from September 22, 2009 through October 31, 2009). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty from October 1958 to October 1960. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which continued a 20 percent rating for a right herniated nucleus pulposus at L4-5. In a July 2010 rating decision, the RO granted a 100 percent temporary rating for surgical convalescence from September 22, 2009 through October 31, 2009 and continued the assigned 20 percent rating from November 1, 2009. In March 2011, the Veteran testified at a travel board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is in the record. The Board denied the Veteran's claim for a rating in excess of 20 percent for herniated nucleus pulposus L4-5, right, in an October 2011 decision. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2012 Joint Motion for Remand (JMR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the October 2011 decision. The Court granted the JMR in a June 2012 Order. Therefore, the issue returns to the Board for further consideration. The issue of entitlement to service connection for depression claimed as secondary to a low back disability has been raised by the record-see March 2009 and March 2010 statements-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. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND In a June 2012 JMR, the parties agreed that the June 2008 and April 2010 VA examination reports are inadequate because the examiners failed to discuss whether the Veteran's pain could significantly limit functional ability during flare-ups and whether any functional loss was attributable to pain during flare-ups. See JMR, p. 3. The parties agreed that a new VA medical opinion is required. Id., p. 1. On remand, the AOJ should provide the Veteran with a new examination of his lumbar spine, and the examiner should provide a discussion consistent with the foregoing. Additionally, while on remand, the Veteran should be given an opportunity to identify any healthcare provider who treated him for his right herniated nucleus pulposus L4-5 since April 2007. Thereafter, any identified records, to include those from the Pittsburgh, Pennsylvania VA Medical Center dated from March 2010 to the present that are not already included in the claims file should be obtained for consideration in the Veteran's appeal. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Ask the Veteran to provide the names and addresses of all medical care providers who treated him for his right herniated nucleus pulposus L4-5 since April 2007. After securing the necessary release, the RO/AMC should request any relevant records identified that are not duplicates of those already contained in the claims file. Additionally, obtain relevant VA treatment records from the Pittsburgh, Pennsylvania VA Medical Center dating since March 2010. If any requested records are unavailable, the Veteran should be notified of such. 2. After completion of the above to the extent possible, schedule the Veteran for a VA lumbar spine examination to determine the current manifestations and effects of his right herniated nucleus pulposus L4-5. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. a) All indicated tests should be performed and all findings should be reported in detail, including range of motion of the thoracolumbar spine (specifying at what degree in motion pain begins), and motor and sensory evaluation (including radiculopathy, if any). b) The examiner should discuss whether the Veteran's pain could significantly limit functional ability during flare-ups, and whether any functional loss was attributable to pain during flare-ups. The examiner should specify the extent of any limitation of functional ability and functional loss during flare-ups in degrees, if possible. If it is not possible to express such in degrees, the examiner should explain why. c) The examiner should also note the total duration, over the preceding twelve months, of any incapacitating episodes of intervertebral disc syndrome with prescribed bedrest. 3. Thereafter, the claim should be readjudicated. If the remanded claim remains denied, issue a supplemental statement of the case, and afford the Veteran an opportunity to respond. Thereafter, return the case to the Board for appellate review. The Board intimates no opinion as to the ultimate outcome of this case. 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. 2012). _________________________________________________ K. A. BANFIELD 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).