Citation Nr: 1317700 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 06-07 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 10 percent for a low back disorder manifested by chronic low back pain and a herniated nucleus pulposus with spinal stenosis at L5-S1. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from November 2000 to November 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision entered in April 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in St, Louis, Missouri, granting service connection for a low back disorder manifested by low back pain and a herniated nucleus pulposus with spinal stenosis at L5-S1 and granting a 0 percent evaluation therefor, effective from November 2004. By further rating action in December 2005, the RO increased the initial rating assigned from 0 percent to 10 percent, effective from November 2004. The Board confirmed and continued that 10 percent rating by its decision of December 2008, but the U.S. Court of Appeals for Veterans Claims (Court) by its October 2009 order vacated the Board's decision and remanded that issue alone to the Board for further action. Subsequent remands of that issue were entered by the Board in May 2010 and most recently in March 2012 so that additional development could be undertaken by the VA's Appeals Management Center (AMC) in Washington, DC. Based on the Veteran's eventual relocation, the additional actions sought by the Board were in part effectuated by the RO in St. Petersburg, Florida. Following the RO's and AMC's attempts to complete the requested actions, the case has since been returned to the Board for further review. This appeal is REMANDED to the RO via the AMC. VA will notify the Veteran-appellant if further action is required on his part. REMAND On remand, additions to the Veteran's virtual VA claims folder were made with respect to VA medical treatment records, including two entries on March 30, 2012 for VA clinical records compiled from January 4, 2005 to May 7, 2006, and from March 28, 2005 to January 30, 2012, at various VA medical facilities. Another entry was made on July 25, 2012, for VA treatment records compiled from September 25, 2007, to May 24, 2012. On October 23, 2012, VA medical records compiled from March 28, 2005, to October 5, 2012, were added and on April 16, 2013, VA medical records from October 5, 2012, to March 8, 2013, were added. Of the aforementioned entries to the virtual VA folder, only those records added on July 25, 2012, and April 16, 2013, were specifically referenced and considered in the most recently issued supplemental statement of the case of April 2013. Moreover, prior decisional documents, inclusive of the statement of the case of December 2005 and the supplemental statements of the case of February, October, and December 2011, considered only VA treatment records compiled on January 4, 2005, from April 14, 2005, to July 21, 2005, from September 25, 2007, to May 24, 2012 (inclusive of those from May 18, 2011, to August 5, 2011) and from October 5, 2012, to March 8, 2013. No consideration was thus afforded all VA records of low back care involving those added on March 30 2012, and October 23, 2012. This represents a violation of the holding in Stegall v. West, 12 Vet. App. 268, 270-71 (1998) (remand by the Board confers on the Veteran the right to compliance with the Board's remand order as a matter of law.) and Disabled American Veterans, et al. v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), and remand is required for corrective action. See also 38 C.F.R. § 3.103 (2012). It, too, is evident that on remand the AMC referred the claim herein at issue to the Director of the VA's Compensation and Pension Service for extraschedular consideration of a higher initial rating for a low back disorder. The Director in his April 2013 response conceded the existence of evidence of an exceptional or unusual disability picture but found that "the evidence is unclear as to what extent the non-service connected bilateral hip conditions and service-connected back condition contribute to the Veteran's disability picture." The Director further found that medical evidence indicated that the Veteran's thoracolumbar disability limited his bending ability only to a mild degree and that, "[w]hen comparing the level of severity and the symptomatology of the service-connected back condition with the rating schedular criteria the current evaluation is adequate, rendering the disability picture inadequate." He additionally determined that the evidence in its entirety "presents no evidence of an exceptional or unusual disability picture...solely due to the Veteran's service-connected disabilities" and concluded that the assignment of an extraschedular evaluation was not warranted. The Board cannot proceed to adjudicate the question of extraschedular entitlement without seeking clarification from the Director of the Compensation and Pension Service as to certain points raised in his April 2013 memorandum, particularly those statements which are conflicting or inconsistent. For instance, if the evidence is unclear as to the impact of the Veteran's service-connected low back disability picture, it is equally unclear how it can also be determined that the evidence in its entirety fails to identify an exceptional or unusual disability picture due to service-connected disablement. Moreover, it cannot be ascertained on what basis the Director determined that because the schedular evaluation for the low back was adequate, how it can then be concluded that the disability picture is inadequate. Further input from the Director is clearly necessitated on remand, and depending on that input, the AMC should consider whether any additional development is needed, to include an additional medical examination to more clearly delineate the on-the-job limitations imposed by the Veteran's service-connected low back disorder. This is within the AMC's discretion to determine what, if any additional actions may be in order. Accordingly, this case is REMANDED for the following actions: 1. Obtain any and all pertinent VA treatment records compiled since March 8, 2013 for inclusion in the Veteran's VA claims file. 2. Thereafter, return the April 2013 memorandum from the Director of the VA's Compensation and Pension Service to the Director for clarification of prior entries as to the Veteran's entitlement to an extraschedular rating for his service-connected low back disorder. Clarification is needed as to whether the record is unclear as to what extent the Veteran's service-connected low back disorder contributes to his disability picture, how if it is determined that the schedular evaluation previously assigned is deemed adequate can the disability picture be rendered inadequate, and whether as indicated there is any evidence of an exceptional or unusual disability picture due solely to the Veteran's service-connected low back disorder. 3. Then, depending upon the further response received from the Director of the VA Compensation and Pension Service, the AMC should determine if any additional medical examination and/or opinion, or other development actions, are needed for purposes of ascertaining the limitations imposed specifically by the Veteran's service-connected low back disorder, as opposed to any other service-connected or nonservice-connected disabilities. If and only if further development is deemed necessary, obtain that needed development; otherwise proceed to complete the actions set forth in item four (4) below. 4. Lastly, readjudicate the Veteran's claim for an initial schedular and/or extraschedular rating in excess of 10 percent for his service-connected low back disorder on the basis of all of the evidence of record, including but not limited to each and every pertinent VA examination and treatment record identified in the Veteran's actual and virtual VA claims file. If the benefit sought on appeal is not granted to the Veteran's satisfaction, provide him with a supplemental statement of the case which clearly identifies all of the evidence considered, including the VA treatment records previously not considered, and permit him a reasonable period of time for a response. Then, return the case file to the Board for further review. No action by the Veteran is required until he is further informed. The Veteran 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). _________________________________________________ MILO H. HAWLEY 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).