Citation Nr: 1327245	
Decision Date: 08/26/13    Archive Date: 08/29/13

DOCKET NO.  07-39 313	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Fort Harrison, Montana


THE ISSUES

1.  Entitlement to a disability rating in excess of 20 percent for traumatic arthritis of the lumbar spine.  

2.  Entitlement to a separate rating or ratings for lumbar spine radiculopathy.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

R. Anderson, Associate Counsel



INTRODUCTION

The Veteran served on active duty from June 1968 to May 1991.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2007 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  The case was remanded in September 2011.

For reasons hereinafter explained, the Board has added an issue of entitlement to a separate rating or ratings for lumbar spine radiculopathy. 

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

Although the Board regrets further delay, further medical clarification is necessary to fully assist the veteran.  On VA examination in October 2011, the examiner reported that there was no evidence of radiculopathy.  However, subsequent private records dated in January 2012 and March 2012 show treatment, including Lyrica and a bilateral transforaminal injection to treat neuropathic pain.  The March 2012 record lists a diagnosis of lumbosacral radiculopathy.  

The above evidence is significant because it raises the possibility of assignment of a separate compensable rating or ratings for radiculopathy associated with the service-connected low back disability at issue.  Medical clarification is necessary to fully assist the Veteran.

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be scheduled for another VA spine examination.  The claims file should be made available for review.  Any medically indicated special tests should be conducted.  

Examination findings should be reported to allow for application of VA rating criteria, to include range of motion studies and information regarding the frequency and duration of any incapacitating episodes. 

The examiner is specifically asked to report whether there is evidence of radiculopathy into the right and or left lower extremity associated with the service-connected lumbar spine disability.  If so, the examiner should offer an opinion as to the severity.

2.  After completion of the above, the RO should review the expanded record and determine if a higher rating is warranted for the traumatic arthritis of the lumbar spine and also whether a separate compensable rating or ratings is/are warranted for any associated radiculopathy.  The Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond.  Thereafter, the case should be returned to the Board for appellate review. 


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).

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).



_________________________________________________
ALAN S. PEEVY
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).