Citation Nr: 1316649	
Decision Date: 05/21/13    Archive Date: 05/29/13

DOCKET NO.  06-28 146A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana



THE ISSUE

Entitlement to a compensable rating for lumbosacral strain before February 18, 2009, and a rating higher than 10 percent from February 18, 2009.  



WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

N. L. Northcutt, Counsel 





INTRODUCTION

The Veteran, who is the Appellant, served on active duty from January 1974 to January 1977. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in January 2005 of a Department of Veterans Affairs (VA) Regional Office (RO).   

While on appeal in a rating decision in February 2010, the RO increased the rating to 10 percent from February 18, 2009.

In March 2011, the Veteran appeared at a hearing before a Veterans Law Judge.  A copy of the hearing transcript is in the record.  

In May 2011, the Board remanded the claim for further development.

In June 2012, the Board afforded the Veteran the opportunity for another hearing before the Board, as the Veterans Law Judge, who conducted hearing in March 2011, had retired.  There is no record of response from the Veteran.    

The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC.  


REMAND

Pursuant to the Board's remand directive in May 2011, the Veteran was afforded a VA examination in May 2012.  





As the findings of the VA examination did not specifically address the Board's remand directive, a reexamined is required.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (if the Board proceeds with final disposition of an appeal, and the remand order has not been complied with, the Board itself errs in failing to ensure compliance). 

Accordingly, the case is REMANDED for the following action:

1.  Afford the Veteran a VA examination by a VA health care professional, who has not previously examined the Veteran, to determine the current level of disability due to lumbosacral strain.

The examination must include nerve conduction studies and an EMG of the lower extremities. 

The VA examiner is asked if it is possible to separate the symptoms and findings attributable to the service-connected lumbosacral strain from the postservice L4-L5 disc herniation with L5 radiculopathy, following a lift-type injury at work in September 2000. 

If it is not possible to separate the symptoms and findings attributable to the service-connected lumbosacral strain from the postservice L4-L5 disc herniation with L5 radiculopathy, the findings should be attributed to the service-connected lumbosacral strain. 





The VA examiner is asked to describe: 

a).  Range of motion in degrees of flexion, extension, rotation, and lateral flexion, and any additional functional loss due to pain, painful movement, weakened movement, fatigue, or repetitive movement; 

b).  Any objective neurological abnormalities, identifying the specific nerve involved, and whether the neurologic impairment is s mild, moderate, moderately severe, or severe; 

c).  Any incapacitating episodes necessitating bed rest and treatment by a physician, and if so, the duration of the episodes; and,  

d).  The effect the disability of the lumbosacral spine has on employability. 

The Veteran's file must be made available to the VA examiner for review. 

2.  After the development has been completed, adjudicate the claim.  If the benefit sought is denied, furnish the Veteran and his representative with a supplemental statement of the case and return the case to the Board.









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).

The claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board 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).



_________________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).