Citation Nr: 1313743 Decision Date: 04/24/13 Archive Date: 05/03/13 DOCKET NO. 06-35 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a rating in excess of 20 percent for lumbosacral strain prior to February 27, 2009. 2. Entitlement to a rating in excess of 40 percent for lumbosacral strain from February 27, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T.S. Willie, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision by the RO in Philadelphia, Pennsylvania. The case was subsequently transferred to the RO in Winston-Salem, North Carolina. In July 2010, the RO notified the Veteran that a travel board hearing was scheduled for August 2010. The Veteran subsequently indicated that he did not want a hearing. As such, his hearing request is considered withdrawn. See 38 C.F.R. § 20.702(e) (2012). In November 2010 and August 2012, the Board remanded the Veteran's claim for additional development. The appeal has been returned to the Board for further consideration. 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 the November 2010 remand, having determined that the Veteran's claim for a higher rating for the lumbosacral strain had been pending since December 1984, the Board instructed the RO to also consider the former rating criteria in evaluating the lumbosacral strain. The Board noted that regulations pertaining to the evaluation of a lumbosacral strain and limitation of lumbosacral motion were amended effective September 26, 2003. When this issue was before the Board in August 2012, the Board again directed the RO to consider the former rating criteria in evaluating the lumbosacral strain. Since that time, the RO has afforded the Veteran another VA examination. The RO, however, did not consider the former rating criteria in evaluating the lumbosacral strain in its February 2013 supplemental statement of the case. The Court has held that a remand by the Board confers upon a claimant, as a matter of law, the right to compliance with remand orders. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). There continues, however, to be no indication in the record that the former rating criteria have been considered in the evaluation of the lumbosacral strain. See e.g., 38 C.F.R. § 4.71a, Diagnostic Codes 5289, 5292, 5295 (2002). Thus, additional development to correct this deficiency must be undertaken. In this regard, the Veteran is hereby notified that a limitation of lumbar motion under the former criteria was rated under 38 C.F.R. § 4.71a, Diagnostic Code 5292 (2002). That Diagnostic Code authorized ratings of 10 percent for slight, 20 percent for moderate, and 40 percent for severe limitation of lumbar motion. The provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5289 (2002) provided a 40 percent disability rating for favorable ankylosis of the lumbar spine and a 50 percent rating for unfavorable lumbar ankylosis. Finally, the Rating Schedule previously provided a 10 percent rating for a lumbosacral strain when there was evidence of characteristic pain on motion. Where there was evidence of muscle spasm on extreme forward bending with loss of lateral spine motion, unilateral, in a standing position a 20 percent rating was assigned. Finally, where there was listing of the whole spine to the opposite side with a positive Goldthwait's sign, a marked limitation of forward bending in a standing position, a loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion a 40 percent rating was assigned. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002). The regulation as it existed prior to the change is applicable to a claimant's claim for the period prior to the date of the regulatory change, as well as thereafter if more favorable to the appellant. The revised regulation is only applicable from the effective date of the change forward. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Accordingly, the case is REMANDED for the following action: After completion of any additional development deemed appropriate, the RO must re-adjudicate the issues of entitlement to an evaluation greater than 20 percent for a lumbosacral strain for the period prior to February 27, 2009, and entitlement to an evaluation greater than 40 percent for a lumbosacral strain for the period from February 27, 2009. The RO/AMC must consider all evidence since the December 1984 claim, under the current AND former regulations pertaining to the evaluation of spine disabilities. The Veteran must be provided notice of all applicable regulations. If any benefit sought on appeal remains denied, the appellant and his representative must be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ DEREK R. BROWN 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).