Citation Nr: 1328725 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 09-25 075 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a separate compensable rating for radiculopathy of the left leg due to the service connected degenerative disc disease with facet joint arthritis and spondylosis of the lumber spine with intervertebral disc syndrome (IVDS). 2. Entitlement to an initial rating higher than 10 percent for radiculopathy of the right leg due to the service connected degenerative disc disease with facet joint arthritis and spondylosis of the lumber spine with IVDS. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty from June 1983 to September 2004. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Regional Office (RO) in San Diego, California. The Veteran testified before the undersigned Veterans Law Judge at an October 2011 hearing. A transcript of that hearing is of record. In a February 2012 decision, the Board denied a rating in excess of 10 percent for degenerative disc disease with facet joint arthritis and spondylosis of the lumbar spine with intervertebral disk syndrome for the period prior to April 4, 2009, a rating in excess of 20 percent for degenerative disc disease with facet joint arthritis and spondylosis of the lumbar spine with intervertebral disk syndrome for the period beginning April 4, 2009 and a rating in excess of 30 percent for GERD with IBS. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (Court). In a Joint Motion for Remand (JMR) the parties agreed to vacate the February 2012 decision and remand the case to the Board for additional development on the basis that the Board failed to adjudicate the issue of entitlement to a rating higher than 10 percent for radiculopathy of the right leg due to the service connected degenerative disc disease with facet joint arthritis and spondylosis of the lumber spine with IVDS and entitlement to a separate rating for radiculopathy of the left leg due to the service connected degenerative disc disease with facet joint arthritis and spondylosis of the lumber spine with IVDS. The JMR was incorporated by reference in a Court order dated in December 2012. 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 Pursuant to the December 2012 Court order, the issues before the Board are entitlement to a separate compensable rating for radiculopathy of the left leg due to the service connected degenerative disc disease with facet joint arthritis and spondylosis of the lumber spine with IVDS, and entitlement to an initial rating higher than 10 percent for radiculopathy of the right leg due to the service connected degenerative disc disease with facet joint arthritis and spondylosis of the lumber spine with IVDS. In a rating decision the RO assigned the 10 percent rating to the right lower extremity. The Veteran indicated no disagreement with that action, and pursuant to the JMR, a separate notice of disagreement on these issues was not needed. The Motion indicated that this matter was before the Board. It is noted, however, that no statement or supplemental statement of the case had been issued, and as such, the Board could not have decided the matter at that time without violating appellant's due process rights. Nevertheless, that will be cured by the action directed herein. The Veteran was last examined in April 2009. During this examination, it was determined that he had lumbar IVDS with the sciatic nerve being the most likely nerve affected on the right side. The examiner, however, did not discuss the level of severity of these deficits or the resulting functional impairment nor did he fully describe whether there were significant left side neurological manifestations. Currently, there is insufficient evidence to determine whether a separate, compensable rating for neurological involvement for the left side is warranted. The evidence is also inadequate to address the current level of severity of the Veteran radiculopathy of the right leg. Therefore, the Board finds that a remand is warranted. Accordingly, the case is REMANDED for the following actions: 1. The Veteran should be afforded a VA examination to ascertain the severity of any neurological manifestations associated with his service connected degenerative disc disease with facet joint arthritis and spondylosis of the lumber spine with IVDS. The claims file must be made available to the examiner in conjunction with the examination. All pertinent symptomatology and findings should be reported in detail. Any indicated diagnostic tests and studies should be accomplished. The examiner should identify any neurological manifestations of the Veteran's service-connected lumbar spine disability, identify all nerve(s) involved and degree of impairment to include all symptoms and manifestations (whether the involvement is only sensory (neuralgia), or if it is characterized by organic changes such as loss of reflexes, muscle atrophy, sensory disturbances, constant pain (neuritis) as well as a characterization of the symptoms as to whether they represent complete paralysis or incomplete paralysis. The examiner should provide a complete rationale for any opinion provided. 2. Upon completion of the above requested development and any additional development deemed appropriate, the RO should readjudicate the remanded issues. If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. 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). _________________________________________________ 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).