Citation Nr: 1319124 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 05-19 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an extraschedular evaluation in excess of 40 percent for service-connected back disability, to include residuals of fracture of the second lumbar vertebra (L-2). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from February 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision of August 2003, which granted service connection for a lumbar spine disability (diagnosed as fracture, transverse process, L-2, lumbar spine), evaluating it at a 40 percent disability rating. The Veteran timely filed a Notice of Disagreement in January 2004. Subsequently, in July 2004, the RO issued another decision and notice of decision, which continued the 40 percent evaluation for the Veteran's service-connected lumbar spine disability. The Veteran initially requested a Board hearing on this matter, but subsequently withdrew that request in writing in July 2005 and again in January 2007. 38 C.F.R. § 20.704(e) (2012). He testified at an RO hearing in October 2005, a transcript of which has been associated with the claims file. In January 2008, the Board denied an evaluation in excess of 40 percent for the Veteran's service-connected low back condition, on a schedular basis, and remanded the issue of an extraschedular rating for referral to the appropriate officials for consideration pursuant to 38 C.F.R. § 3.321(b)(1) (2012). In April 2010, the Board remanded the claim again, because the issue of referral for an extraschedular evaluation had been overlooked on the first remand. In a March 2011 decision, the Board denied the Veteran's claim for an extraschedular evaluation in excess of 40 percent for his service-connected back disability. The Veteran appealed the Board's March 2011 decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2012 memorandum decision, the Court vacated the Board's March 2011 decision, and remanded the matter for further development consistent with the Court's decision. 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 Veteran contends that his service-connected low back disability warrants a rating greater than 40 percent on an extraschedular basis. After a complete review of the claims file, the Board concludes that, despite the extensive development already undertaken, a remand is required prior to adjudication of the claim. As noted above, in January 2008 the Board denied entitlement to a rating greater than 40 percent for the Veteran's service-connected low back disability and remanded the issue of an extraschedular rating for referral to the appropriate officials for consideration pursuant to 38 C.F.R. § 3.321(b)(1). Following another remand in April 2010, the Director of Compensation and Pension (C&P) Service provided an opinion in November 2010. The opinion noted, "The veteran had been working on a full time basis for several years. Evidence does not show that he missed any time from work due to his back condition." While the opinion is correct that the Veteran was employed at the time of VA examinations in May 2003 and April 2004, by July 2004 the Veteran had not worked in the previous two months. A mental health record in December 2004 noted that the Veteran had been unable to maintain a job as a truck driver due to complications from a prostatectomy. During his July 2005 VA examination, the Veteran reported irregular truck driving work. In another July 2005 record, the Veteran noted that he still was looking for a job as a truck driver. Thus, the evidence of record demonstrates that while the Veteran was employed until early 2004, from that time he has only been intermittently employed. As such, the Board cannot find the November 2010 opinion from the C&P Director sufficient for rating purposes. In addition, the Board observes that the last VA examination of record for the low back was conducted in February 2007. In light of the length of time since the last VA examination and the arguments of the Veteran's then representative in his brief to the Court, the Board concludes that a VA examination to determine the current severity of the Veteran's low back disability is warranted, to include the effects of his low back problems on his work and other functioning. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate examination for his service-connected low back disability, to ascertain the current level of severity. The entire claims file must be made available to the examiner for review in conjunction with the examination and should be so documented in the examination report. All tests and studies that the examiner deems necessary should be performed. 2. Thereafter, refer the case to the Under Secretary for Benefits or the Director of Compensation Service for consideration of an extraschedular evaluation for the Veteran's service-connected back disability. In that regard, the opinion provider should note that the rationale provided in the November 2010 opinion from the Director of C&P is considered inadequate, as it failed to consider the evidence that the Veteran was, at most, intermittently employed from early 2004 (see above for specific records referencing such lack of employment). 3. After the above is complete, readjudicate the Veteran's claim. If the complete benefits sought on appeal are not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ BETHANY L. BUCK 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).