Citation Nr: 1328429 Decision Date: 09/05/13 Archive Date: 09/16/13 DOCKET NO. 09-45 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 20 percent for lumbago. 2. Entitlement to a total disability rating based on unemployability (TDIU). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from September 2005 to December 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, increased the rating of the Veteran's lumbago from 10 percent to 20 percent. The Veteran testified at a May 2011 hearing before the undersigned at the St. Petersburg RO. A transcript of the hearing has been associated with the claims file. In February 2012, the Board remanded this case. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that the Veteran is afforded every possible consideration. The Board remanded this case, in pertinent part, for the Veteran to be afforded a VA examination. The Veteran failed to report for the first scheduled examination due to an address change. Apparently, the notice for the second examination was sent to the old address. She was scheduled for a third examination, but did not report again. The Veteran's representative asserts that the third notice was also sent to the old address and requests a remand for a new examination. In viewing the available documents in the Veteran's claims file and Virtual VA System file, the initial examination inquiry listed the old address. Further along in that document, the new address is listed. However, since a copy of the actual notice letter for the examination is not of record, the Board takes note of the representative's request for a new examination and remands this case accordingly. Also, since the Veteran receives medical treatment from the Bay Pines medical facility, updated records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the record copies of all outstanding clinical records of the Veteran's treatment at VA's Bay Pines medical facility. 2. Schedule the Veteran for a VA examination to identify and evaluate all impairment involving the Veteran's service-connected lumbago, to include any associated neurologic abnormalities. The contact letter which informs the Veteran of the scheduled examination should be made a part of the record. The record and a copy of this REMAND must be made available to the examiner prior to the examination. All tests and studies deemed helpful by the examiner should be conducted and all clinical findings reported in detail. The examiner must conduct repetitive testing of ranges of motion (to include at least three repetitions, if possible) and specify the Veteran's ranges of motion in the examination report. The examiner must state whether there is objective evidence of pain on motion and at what point it begins, and whether weakened movement, excess fatigability, and/or incoordination are present. The examiner must also state whether, and to what extent, the Veteran experiences additional functional loss during flare-ups or with repeated use of the thoracolumbar spine. The examiner should express such functional losses in terms of additional degrees of limited range of motion if it is possible to do so without resorting to speculation. The examiner should also address whether the Veteran has a history of incapacitating episodes during the pendency of this claim. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). The examiner must also identify and assess any neurologic abnormalities associated with the Veteran's lumbago. In this regard, it should be noted that the October 2008 VA examination report reflects a finding of "sciatica symptoms in the right lower extremity." Finally, the examiner must describe all functional impairment associated with the Veteran's lumbago, and in particular must assess its impact on her ability to work and, if employment was prevented, the time frame when that commenced. 3. The AMC should then readjudicate the claims on appeal in light of all of the evidence of record. If an issue on appeal remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. 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). _________________________________________________ K. PARAKKAL 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).