Citation Nr: 1312993 Decision Date: 04/18/13 Archive Date: 05/02/13 DOCKET NO. 08-05 239 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 20 percent for service-connected degenerative disc space with spondylosis of the lumbar spine. 2. Entitlement to an initial rating in excess of 10 percent for service-connected right maxillary and frontal sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active service from January 1982 to July 2006. The case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The issue on appeal was most recently before the Board in October 2011. The Veteran appealed a Board's October 2011 denial to the United States Court of Appeals for Veterans Claims (Court). By Order dated December 27, 2012, the Court granted the Veteran's Joint Motion for Partial Remand (Joint Motion) of the issues listed above and remanded this matter to the Board for compliance with the instructions included in the Joint Motion. 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 Regarding the Veteran's increased rating claim for back disability, the Veteran was afforded a VA examination in January 2010. The Joint Motion found the examination to be inadequate since the VA examiner provided only one set of data regarding the range of motion of the Veteran's spine and there is no indication whether it was on active or passive motion, or in weight-bearing or nonweight-bearing. The Joint Motion cited to the provisions of 38 C.F.R. § 4.59. To comply with the Joint Motion, another examination is necessary. With regard to the Veteran's increased rating claim for sinusitis claim, an addendum to the January 2010 VA examination report is necessary after the examiner has had the opportunity to review the claims file. Moreover, the Veteran subsequently submitted private treatment records which the VA examiner did not have the benefit of reviewing. Accordingly, the case is REMANDED for the following actions: 1. Appropriate should be taken to ensure that additional evidence which the Veteran has indicated that he submitted to the RO in February 2013 is associated with the claims file. 2. The Veteran should then be scheduled for a VA spine examination. It is imperative that the claims file be made available to the examiner for review in connection with the examination. All examination findings should be clearly reported to allow for application of VA rating criteria for back disabilities. The examiner should test for pain on both active and passive motion, and in weight-bearing and nonweight-bearing. The examiner should report range of motion and indicate (in degrees) the point at which pain is elicited. The examiner should also report any additional functional loss due to weakness, fatigue or incoordination, including during flare-ups. 3. Regarding sinusitis, the claims file should be forwarded to the January 2010 VA examiner for review (to include all new evidence) and an addendum to the examination report. If the June 2010 VA examiner is no longer available, the RO should schedule the Veteran for another VA examination to ascertain the current severity of the Veteran's sinusitis. The claims file should be made available to the examiner for review. All findings should be clearly reported, and pertinent findings should be reported to allow for application of the rating criteria for sinusitis. 4. After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and readjudicate the issues on appeal. The RO should issue an appropriate supplemental statement of the case, and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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. 2012). _________________________________________________ ALAN S. PEEVY 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).