Citation Nr: 1324169 Decision Date: 07/30/13 Archive Date: 08/07/13 DOCKET NO. 09-30 315 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for a lumbar strain. 2. Entitlement to an evaluation in excess of 10 percent for a cervical strain prior to June 28, 2010. 3. Entitlement to an evaluation in excess of 20 percent for a cervical strain since June 28, 2010. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and P.M. ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from August 1989 to October 1995 and from March 1996 to September 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision promulgated by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In June 2013, the Veteran testified at a Board hearing in Washington, DC, before the undersigned Veterans Law Judge; a transcript of the hearing is of record. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. 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 last underwent a VA spine examination for the purposes of evaluating her lumbar and cervical spine disabilities in October 2010. During the Board hearing, she testified that these disabilities had worsened since the last examination (Hearing Transcript (Tr.), pg. 2). Therefore, the Board finds that a more contemporaneous VA examination is appropriate prior to a final adjudication of the Veteran's claims. See Snuffer v. Gober, 10 Vet. App. 400 (1997). During the Board hearing, the Veteran and her work supervisor (P.M.) testified that her back and neck pain caused her to be bedridden two or three times a month for one or two days at a time, which caused her to miss work (Hearing Tr., pgs. 3-4). They also testified that it was difficult for the Veteran to work at her desk all day without getting up to move around, which decreased her productivity (Hearing Tr., 6). She also said that she had to make emergency room visits to the VA on several occasions (Hearing Tr., pg. 16) When a service-connected disability markedly interferes with employment, it might make it impractical to apply the regular standards of the rating schedule and may warrant consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). More information is needed to determine whether the Veteran's cervical and lumbar strains have markedly interfered with employment. On remand, the Veteran should be provided an opportunity to submit employment records from 2007 forward that show what days she missed work and, if recorded, the reason for each missed day. She also should be provided an opportunity to submit any medical or other documentation from 2007 forward that may help to show how her lumbar and cervical spine disabilities affect her work attendance (i.e., a doctor prescribed light duty or time off from work) and her productivity at work. Thereafter, the RO should consider whether referral to appropriate VA officials for consideration of extraschedular ratings is appropriate. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran the opportunity to submit any employment records showing the days she missed work from 2007 forward and, if recorded, the reason for each missed day. Also, she may submit any medical or other documentation that addresses the effect of her cervical and lumbar strains on employment from 2007 forward (e.g., a recommendation for light duty or time off from work, evidence of decreased productivity). 2. Obtain all outstanding records of VA evaluation and/or treatment for the Veteran's service-connected lumbar and cervical spine disabilities. All records/responses received should be associated with the claims file. 3. Thereafter, schedule the Veteran for a VA examination to determine the current severity of her lumbar and cervical spine disabilities. Specifically, the examiner should perform range of motion testing on the spine and determine whether there is additional limitation of motion due to pain, weakness, fatigability, lack of endurance, or incoordination upon repetitive motion. The examiner should also determine whether the Veteran has favorable or unfavorable ankylosis of the thoracolumbar spine or entire spine. The examiner should also determine whether the Veteran has had incapacitating episodes of the spine in the past 12 months that required bed rest prescribed by a physician and treatment by a physician, and if so, state the total duration of the incapacitating episodes. Finally, the examiner should determine whether the Veteran has any neurological impairment, to include radiating pain, weakness, and numbness, that is related to her lumbar and cervical spine disabilities, and if so, describe in detail the impairment shown. If there is bladder or bowel impairment related to the back that should also be set out. Lastly, the examiner should describe functional impairments as they affect her employment. The examiner must review the claims folder and should note that review in the examination report. 4. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate the claims in light of all pertinent evidence and legal authority. The RO must specifically consider and discuss whether the procedures for referral for consideration of extraschedular evaluations for the lumbar and cervical spine disabilities, pursuant to 38 C.F.R. § 3.321(b), is appropriate. 5. Thereafter, if any benefit sought on appeal remains denied, the RO must furnish the Veteran and her representative an appropriate supplemental statement of the case that includes citation to and discussion of all additional legal authority considered, particularly 38 C.F.R. §§ 3.321(b), as well as clear reasons and bases for all determinations. The appellant and her representative must be afforded an appropriate time period to respond before the claims file is returned to the Board for further appellate consideration. 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). These claims must be afforded expeditious treatment. The law requires that all claims 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). _________________________________________________ MICHAEL D. LYON 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).