Citation Nr: 1329778 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 04-42 079 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for schizoaffective disorder. 2. Entitlement to an evaluation in excess of 10 percent for a lumbar spine disability. REPRESENTATION Appellant represented by: Peter J. Meadows, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from August 1983 to June 1986. This matter initially came before the Board of Veterans' Appeals (Board) on an appeal from June 2003 and February 2008 rating decisions issued by the Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a hearing before the undersigned Veteran's Law Judge with respect to his increased rating claim in March 2007. He also testified at a hearing before a decision review officer (DRO) at the RO in March 2004. The Veteran did not request a hearing in connection with his service connection claim. By way of procedural history, the Board denied the Veteran's claim for a compensable evaluation for his lumbar spine disability in September 2008. The Veteran appealed that denial to the Court of Appeals for Veterans Claims (Court) and in August 2009 the parties entered into a Joint Motion for Remand (JMR) that vacated the September 2008 Board decision; the JMR was implemented by the Court. In March 2010 the Board granted the Veteran a 10 percent evaluation for his lumbar spine disability. The Veteran again appealed to the Court, and in September 2010 the parties entered into another JMR to vacate the Board decision to the extent that it did not grant a rating in excess of 10 percent for the lumbar spine disability; the JMR was implemented by the Court. In August 2011 the Board remanded the Veteran's increased rating claim in accordance with the provisions of the JMR and remanded the Veteran's claim for service connection for schizoaffective disorder for the issuance of a statement of the case (SOC). In December 2012 the Veteran perfected his appeal of the denial of service connection for schizoaffective disorder. The case has now been returned to the Board. The issue of entitlement to a total disability rating by reason of individual unemployability (TDIU) has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Additionally, the Veteran indicated that he wanted to file a motion for clear and unmistakable error (CUE) in an April 2010 rating decision issued by the RO which assigned an effective date of December 1, 2002 for the assignment of a 10 percent rating for mechanical low back pain; this new claim also has not been adjudicated by the AOJ. The Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND With respect to the Veteran's claim of an increased rating for his low back disorder, the Board's August 2011 remand requested both a new examination and an addendum opinion to a December 2007 examination report addressing whether there was additional loss of motion (loss of range of motion in excess of 80 degrees) due to pain, and, if possible, specification of the additional degree of motion lost. While a new evaluation of the severity of the Veteran's lumbar spine disability was conducted in July 2012, the addendum opinion concerning the findings in the December 2007 examination was not obtained. A Veteran is entitled to compliance with the instructions which are set forth in a Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, another attempt to obtain an addendum to the December 2007 examination should be made. With respect to the Veteran's claim for service connection for schizoaffective disorder, an etiological opinion from a psychologist was obtained in July 2012. While the examiner opined that there was no connection between mechanical low back pain and the development of schizoaffective disorder, she did not address whether the Veteran's schizoaffective disorder was aggravated by his low back pain. Thus, an addendum opinion is necessary in order to establish whether it is at least as likely as not that the Veteran's schizoaffective disorder was made permanently worse as a result of his service connected low back disability. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum opinion to the December 2007 report of examination of the Veteran's lumbar spine from the examiner who prepared the December 2007 examination report or a similarly qualified examiner. The examiner should indicate whether the Veteran's documented loss of flexion during the December 2007 examination was due to pain, or whether there was an additional loss of range of motion due to pain during that examination. If the examiner who prepared that report meant that there was an additional loss of range of motion in excess of the 80 degrees documented in the report, he should specify the additional range of motion lost due to pain. If the examiner is unable to determine from the report whether there was any additional loss of motion in excess of 80 degrees, or the amount of additional motion lost, he or she should so indicate and explain why he or she is unable to make a determination. 2. Obtain an addendum opinion from the examiner who prepared the July 2012 psychological examination, or, if she is unavailable, a similarly qualified examiner. The examiner should indicate whether it is at least as likely as not (at least 50 percent likely) that the Veteran's schizoaffective disorder was aggravated (made permanently worse) by his service connected low back disability (service connected as mechanical low back pain). The examiner should provide a complete rationale for her conclusions in the addendum report. If the examiner is unable to provide the requested opinion without resort to undue speculation, he or she should explain why this is the case. 3. After completion of the above development, the Veteran's claims should be re-adjudicated. If the determinations remain unfavorable to the Veteran, he and his representative should be provided with a supplemental statement of the case (SSOC) and given an opportunity to respond thereto. Thereafter, if applicable, the claim should be returned to the Board for appellate disposition. 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). _________________________________________________ CHERYL L. MASON 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).