Citation Nr: 1316767 Decision Date: 05/22/13 Archive Date: 05/31/13 DOCKET NO. 03-25 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for chronic low back pain with degenerative changes. 2. Entitlement to an initial disability rating in excess of 20 percent for chronic neck pain with degenerative changes. 3. Entitlement to service connection for a bilateral knee disability. 4. Entitlement to a total rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Virginia A. Girard-Brady, Attorney at Law WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from July 1965 to January 1969. This matter comes to the Board of Veterans' Appeals (Board) from March 2002 and January 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a January 2007 decision, the Board denied a higher initial rating for the low back disorder; granted a 20 percent initial evaluation for the neck disorder for the period prior to March 11, 2002; and denied an increased evaluation in excess of 20 percent for the neck disorder for the period beginning on March 11, 2002. The Veteran appealed the case to the United States Court of Appeals for Veterans Claims (Court). In June 2008, the Court granted a Joint Motion for Remand and vacated the Board's January 2007 decision to the extent that higher evaluations had not been granted and remanded the case back to the Board. In November 2008, the Board remanded the issues for further evidentiary development. In a January 2011 decision, the Board denied all the claims for higher ratings. The Veteran appealed the January 2011 Board decision to the Court. In an August 2012 Memorandum Decision, the Court vacated the January 2011 decision and remanded the appeal to the Board. In October 2006, the Veteran testified at a videoconference before a Veterans Law Judge (VLJ). In April 2010, the Veteran testified at a personal hearing before the undersigned Acting VLJ on the exact same issues he testified about in October 2006. Transcripts of these hearings are associated with the claims file. In this regard, VA law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). Additionally, when two hearings have been held by different VLJs concerning the same issue or issues, the law also requires that the Board assign a third VLJ to decide that issue or issues because a proceeding before the Board must be assigned either to an individual VLJ "or to a panel of not less than three members of the Board." 38 U.S.C.A § 7102(a) (West 2002); 38 C.F.R. § 19.3 (2012). Since the issuance of the January 2011 Board decision, the VLJ who conducted the October 2006 hearing retired. Therefore, because the Acting VLJ that conducted the Veteran's April 2010 personal hearing is still employed by the Board, the Board finds that a three VLJ panel is no longer required to decide the appeal. 38 U.S.C.A § 7102(a); 38 C.F.R. § 19.3. The Board also finds that, because the testimony the Veteran provided before the undersigned Acting VLJ at the April 2010 covers the same issues which he testified about at the October 2006 hearing before the know retired VLJ, VA laws and regulations do not afford him an opportunity to have another hearing. The Board has reached this conclusion because the April 2010 hearing already acted as his de facto second hearing. Lastly, the Board finds that the Court's holding in Arneson v. Shinseki, 24 Vet. App. 379 (2011) (holding that the statute and implementing regulation regarding hearings before the Board entitle an appellant to an opportunity for a hearing before all VLJs who will ultimately decide the appeal) is distinguishable from the current appeal because, in the current appeal, the only VLJ that is still employed by the Board is the one that is ultimately deciding the appeal. The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND In the August 2012 Memorandum Decision, the Court found that a March 2009 examiner's statement did not satisfy the Board's November 2008 remand order that "to the extent that functional loss is present, the examiner must express such functional loss in terms of additional loss of motion." Accordingly, VA was directed to provide the Veteran with another VA spine examination that provides a supporting rationale for any conclusions regarding the effect of any functional loss during flare-ups in terms of additional limitation of motion. If the examiner is not able to do so without resorting to speculation, whether because no flare-ups are apparent during the examination or for any other reason, the Court indicated that the examiner must explicitly explain why this is so. Therefore, the Board finds that another remand to obtain this medical opinion is required. 38 U.S.C.A. § 5103A(d) (West 2002). In a rating decision issued in January 2012, the RO denied entitlement to service connection for a bilateral knee disorder and entitlement to TDIU. Later that month, the Veteran filed with the RO a notice of disagreement as to that decision. No statement of the case is of record. Therefore, these issues are remanded so that the Veteran may be provided with a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). The record shows that the Veteran receives ongoing treatment from the Mobile and Biloxi VA Medical Centers. However, his post-November 2012 treatment records do not appear in the claims file. Therefore, while the appeal is in remand status these records should be obtained and associated with the claims file. See 38 U.S.C.A. § 5103A(d) (West 2002); Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Accordingly, the appeal is REMANDED for the following actions: 1. Obtain and physically or electronically associate with the claims file all of the Veteran's post-November 2012 treatment records from the Mobile and Biloxi VA Medical Centers. All actions to obtain the requested records should be documented fully in the claims file. 2. After undertaking the above development to the extent possible, the Veteran should be afforded a VA spine examination by an appropriate medical doctor to determine the current nature and severity of his service-connected neck and low back disabilities. The claims file should be made available to the examiner prior to the examination and the examiner is requested to review the entire claims file in conjunction with the examination. All tests and studies deemed necessary by the examiner, including X-rays, nerve conduction studies, and an electromyography (EMG), should be performed. After a review of the record on appeal and an examination of the claimant, the examiner should provide the following information as to both the low back disability and neck disability: a. The examination should conduct complete range of motion studies with specific findings as to flexion, extension, rotation, and side to side bending. b. The examination should discuss the presence or absence of any weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, and pain with use (i.e., functional loss) and provide an opinion as to the degree to which this pain further limits flexion, extension, rotation, and side to side bending. If the examiner finds that he or she is not able to express functional loss due to flare-ups, either because flare-ups are not present or because the examiner cannot do so without resorting to speculation, the examiner must provide an explanation for that determination. c. The examiner should provide an opinion as to the number of weeks of incapacitating episodes, if any, during each 12 month period during the pendency of the appeal. d. The examiner should also provide an opinion as to whether either disability causes incomplete paralysis of a nerve and, if so, whether it is mild, moderate, moderately severe, or severe paralysis or complete paralysis. In providing answers to the above questions, the examiner should comment on and/or take note of the fact that the claimant is competent and credible to report on the observable symptoms of his disorders (i.e., pain, swelling, lost motion, etc. . .) even when his records are negative for symptoms. If the examiner cannot provide answers to any of the above questions, the examiner is advised that he/she should explain why the requested opinion cannot be provided (i.e., because the limits of medical knowledge had been exhausted or because further information to assist in making the determination is needed such as additional records and/or diagnostic studies). If the examiner cannot provide the answer because further information to assist in making the determination is needed, all reasonable steps to obtain this missing information should be exhausted before concluding that the answer cannot be provided. A complete rationale with citation to relevant evidence found in the claims file must be provided for each opinion offered. 3. The report of the Veteran's VA examination should be reviewed to ensure that all specific findings requested in this remand are incorporated into the examination report. To the extent that the examination report is incomplete, it should be returned to the examiner for completion or for an addendum before this case is readjudicated. 4. After completion of the above development, readjudicate the claims. The readjudication should consider whether a staged rating is required as well as whether referral for extra-schedular evaluations are warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999); Thun v. Peake, 22 Vet. App. 111 (2008). If any of the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claims for benefits, to include a summary of the evidence received and any evidence not received, and all applicable laws and regulations considered pertinent to the issues currently on appeal. A reasonable period of time should be allowed for response before the appeal is returned to the Board. 5. Issue a statement of the case to the Veteran and his attorney with respect to his claim of service connection for a bilateral knee disorder and his claim for a TDIU. An appropriate period of time should be allowed for response. These issues should only be returned to the Board if the Veteran thereafter perfects his appeal by filing a timely substantive appeal. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). __________________________________________ NEIL T. WERNER Acting 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 Court. 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).