Citation Nr: 1331289 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 08-31 700 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an increased rating for a lumbar spine disorder, described as transitional lumbosacral vertebra with bilateral spondylolysis at L5, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, in which the RO, in pertinent part, denied an evaluation in excess of 20 percent for chronic low back syndrome. A July 2012 Board decision denied entitlement to an increased rating for transitional lumbosacral vertebra with bilateral spondylolysis at L5, and remanded the Veteran's claim for TDIU. The Veteran filed an appeal to the United States Court of Appeals for Veterans Claims (Court). In a February 2013 order, the Court granted a joint motion for partial remand, vacating that part of the Board's July 2012 decision that denied an increased rating for transitional lumbosacral vertebra with bilateral spondylolysis at L5. 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 In the February 2013 joint motion for remand, it was determined that the Board erred in failing to ensure that VA complied with its duty to assist when it relied on a May 2007 VA examination report. In addition, it was determined that the Board failed to provide the appellant with a contemporaneous examination in light of the evidence showing a worsening of the lumbar spine condition. Finally the Board erred in not ensuring that VA took adequate steps to procure or otherwise account for relevant post-service medical records from the Miami VA Medical Center. Regarding the inadequacy of the examination, it was noted that the VA examiner indicated that the Veteran's pain "flares-up" with prolonged walking and bending, and he has "stiffness in his back with limitation of motion." The VA examiner stated that he could not give the exact degree of limitation without resorting to speculation. He further stated that appellant "does have limitation of motion of his spine. I cannot give the exact degree of limitation without resorting to speculation." The VA examiner's failure to express an opinion on whether pain could significantly limit functional ability during flare-ups, or at a minimum, explain the basis for his speculation, rendered the examination inadequate. The Veteran indicated in several documents of record that he was being treated at the Miami VAMC for his service-connected disability. The appellant submitted some Miami VAMC treatment records for the month of January 2008; however, in light of the frequency the Veteran reported to have been treated there and the severity of his post-operative back disability, there was no indication that VA sought to retrieve any of his remaining VAMC medical records. Remand is required to assist the Veteran in obtaining these relevant records. Accordingly, in view of the foregoing discussion, and because the Board is bound by the determinations of the Court in its February 2013 order, the case is REMANDED for the following action: 1. The AMC should obtain all VA medical records, including from the Miami VAMC, generated since the time of the May 2007 VA examination. The AMC, after receiving any appropriate releases, should also obtain any other medical records that may be available from private sources identified by the Veteran. 2. After all records and/or responses received from each contacted entity have been associated with the claims file, the RO should arrange for the Veteran to undergo a new VA spine examination, by an appropriate medical provider. The claims file must be made available to the examiner. All indicated tests and studies should be accomplished (with all findings made available to the examiner prior to the completion of his or her report). The examiner should indicate whether the Veteran has any neurological manifestation(s) of lumbar spine disability, to include radiculopathy of the right and/or left lower extremity. For each neurological impairment identified, the examiner should assess the severity of such disability as mild, moderate, moderately severe, or severe. The examiner should conduct range of motion testing of the thoracolumbar spine (expressed in degrees). The examiner should render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, pursuant to the February 2013 order of the Court, the examiner is requested to refer to the functional range of motion of the Veteran's thoracolumbar spine. The examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the thoracolumbar spine due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether the Veteran has any ankylosis of the lumbar spine; and, if so, the extent of any such ankylosis, and whether the ankylosis is favorable or unfavorable. The examiner must provide a rationale for any opinion expressed and reconcile that opinion with pertinent evidence of record. The examiner should set forth all examination findings and test results, along with the rationale for the conclusions reached, in a report. 3. Upon completion of the above, the RO should readjudicate the claim. If the claim is not granted in full, the Veteran and his representative must be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time must be allowed for response. Thereafter, if indicated, the case must 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 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). _________________________________________________ JAMES L. MARCH 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).