Citation Nr: 1314137 Decision Date: 04/29/13 Archive Date: 05/15/13 DOCKET NO. 07-40 328 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an increased evaluation for a low back strain, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Mary E. Rude, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1969 to May 1972, and from December 1972 to June 1990. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois which increased the rating for a low back strain to 10 percent effective January 5, 2005. In November 2011, the Board denied the claim. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In February 2013, the Court granted a joint motion for remand. In November 2011, the Board remanded the issue of entitlement to service connection for skin cancer for further development. In a November 2012 rating decision service connection for basal cell carcinoma was granted. As this represents a grant of the benefits sought on appeal, that issue is no longer for consideration by the Board. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). 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 The parties to the joint motion found remand to be required because the Board failed to address whether the appellant's diagnosed lumbar arthopathy (joint disease) was related to his service connected low back strain. Further, in argument presented after the joint motion was granted, the suggestion was made that the appellant should be afforded a VA compensation examination. Given the fact that the last such examination was conducted in 2009, the Board finds further development to be required. Hence, this case is REMANDED for the following action: 1. The AMC/RO must contact the Veteran and ask him to identify any health care providers who have treated any diagnosed low back disorder since January 2005. After securing any necessary authorizations, the RO/AMC must attempt to secure all records which have yet to be added to either the claims folders or Virtual VA. All records obtained must be associated the records with the claims folder. If the RO cannot locate such records, it must specifically document the attempts that were made to locate them, and explain in writing why further attempts to locate or obtain any government records would be futile. The RO must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claims. The claimant must then be given an opportunity to respond. 2. Thereafter, schedule the Veteran for a neurosurgical examination by an appropriate VA physician. The claims folder, access to Virtual VA and a copy of this remand must be made available to the examining neurosurgeon. The examining neurosurgeon must indicate whether the claims folder and Virtual VA were reviewed. All indicated tests and studies, to include range of motion studies, to determine the nature and extent of the appellant's low back strain must be conducted. All clinical findings must be reported in detail. The examination report must reflect consideration of the Veteran's documented medical history, current complaints, and other assertions, etc. Following the examination, the examiner must specifically address whether it is at least as likely as not that any diagnosed lumbar joint disease is caused or aggravated by the appellant's low back strain. The examiner must also address whether it is at least as likely as not that any diagnosed radicular pain is caused or aggravated by the appellant's low back strain. The examiner must conduct range of motion studies and report all findings. A complete rationale must be provided for all opinions offered. 3. The RO must ensure that the medical examination report fully complies with this remand and its instructions. If the report is insufficient, or if any requested action is not taken or is deficient, the examination report must be returned for correction. 4. After the development requested has been completed, the AMC/RO should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The AMC/RO must ensure that the examiner documented their review of all pertinent records on Virtual VA. If any report is deficient in any manner, the AMC/RO must implement corrective procedures at once. 5. The Veteran is to be notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 6. Upon completion of the above requested development and any additional development deemed appropriate, the AMC/RO must readjudicate the claim of entitlement to an increased evaluation for a low back strain. In so doing the AMC/RO must specifically document their consideration of the appellant's entitlement to an extraschedular rating for his low back strain, and determine whether his service connected low back strain includes lower extremity radiculopathy and/or degenerative joint disease. All applicable laws and regulations should be considered. 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).