Citation Nr: 1328663 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 11-31 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an increased rating for lumbar spine degenerative disc disease (DDD) evaluated as 20 percent disabling for the orthopedic manifestations. 2. Entitlement to an increased rating for right lumbar radiculopathy as a neurologic manifestation of lumbar spine DDD; evaluated as 10 percent disabling prior to August 9, 2010 and 20 percent disabling, effective August 9, 2010. 3. Entitlement to a total disability rating on the basis of individual unemployability (TDIU). 4. Entitlement to service connection for bilateral hearing loss. REPRESENTATION Appellant represented by: Non Commissioned Officers Association WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran served on active duty from February 1955 to December 1958. This appeal to the Board of Veterans' Appeals (Board) arose from a December 2010 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Newark, New Jersey, that continued the 20 percent rating for the lumbar spine disorder. In as much as the Veteran seeks the highest rating allowable, the Board deems his claim to include a claim of entitlement to TDIU. See Rice Shinseki, 22 Vet. App. 447 (2009). The Veteran appeared at a Travel Board hearing in July 2013 before the undersigned Veterans Law Judge. A transcript of the hearing testimony is of record and has been reviewed. The Veteran has submitted additional evidence for which he waived initial RO review and consideration. In light of the waiver, the Board may properly consider the evidence in this decision without the necessity for a remand. See 38 C.F.R. § 20.1304 (2012). The Veteran has a Virtual claims file, which is a highly secured paperless repository, associated with his appeal. The Board has considered the documents in both files while reviewing this appeal. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. REMAND At the hearing, the Veteran testified his lumbar spine disability has increased in severity since the October 2011 VA examination. Hence, a current examination is indicated. See 38 C.F.R. § 3.159(a)(1); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The October 2011 examiner reported that the Veteran had flare-ups where his back pain reached a level of 10/10; but did not opine as to limitation of motion during flare-ups. Cf. DeLuca v. Brown, 8 Vet. App. 202 (1995). The November 2006 rating decision denied entitlement to service connection for bilateral hearing loss. In a January 2007 statement, VA Form 21-4138, the Veteran-through his representative, informed the RO that he desired a Decision Review Officer to review the denial; and, if the rating decision remained unchanged, a Statement of the Case (SOC) was requested. The Board finds no evidence in the claims file that an SOC was ever issued as required. See 38 C.F.R. § 20.19.29; see also Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The AMC/RO should arrange an examination to determine the current severity of the Veteran's lumbar spine disability, to include neurological symptomatology. A copy of the claims file must be provided for review by the examiner as part of the examiner. The examiner should report whether there is additional limitation of thoracolumbar spine motion due to weakened movement, excess fatigability, incoordination, pain or flare ups. These determinations must be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flareups, or pain. Additional limitation of motion due to flare ups should be estimated on the basis of the Veteran's reports, unless the examiner finds specific reasons to doubt those reports. The examiner should opine whether there is at least a 50-percent probability that, were the Veteran not retired, his lumbar spine disability would render him unable to obtain and maintain substantially gainful employment consistent with his education and occupational experience. The examiner should also state whether the opinion would change if hearing loss was considered service connected. The examiner should provide a full explanation for any opinion rendered. 2. The AMC/RO should review the examination report to insure that it contains the findings with regard to additional limitation of motion due to functional factors as specified in the preceding instruction. 3. If there is any period during the current appeal when the Veteran did not meet the percentage requirements for TDIU under 38 C.F.R. § 4.16(a); refer the case to VA's Director of Compensation and Pension for adjudication under the provisions of 38 C.F.R. § 4.16(b). The AMC/RO shall issue a SOC with regard to the issue of entitlement to service connection for a bilateral hearing loss. Only if the Veteran perfects the appeal by submission of a Substantive Appeal should the issue be returned to the Board. 3. If the decision remains in any way adverse to the Veteran, he and his representative should be provided with a Supplemental SOC. The case should thereafter be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. VA will notify him if further action is required on his part. He 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. 2013). ______________________________________________ Mark D. Hindin 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).