Citation Nr: 1332087 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 09-33 243 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased rating for degenerative joint disease, lumbosacral spine, with prior x-ray evidence of partial lumbarization S1 and pseudorarthrosis, left side, in excess of 10 percent prior to September 8, 2006; in excess of 20 percent prior to April 26, 2012; and in excess of 40 percent from April 26, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1988 to February 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal of a June 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), that denied a rating in excess of 10 percent. In August 2008, a Decision Review Officer increased the rating for the back disability to 20 percent, effective September 8, 2006, based on limitation of motion. In January 2013, a Decision Review Officer increased the rating for the back disability to 40 percent effective April 26, 2012, based on limitation of motion. The Veteran has not indicated she is satisfied with that rating. AB v. Brown, 6 Vet. App. 35, 38 (1993). In her substantive appeal to the Board, the Veteran requested a video-conference hearing before a member of the Board. She was notified of her scheduled August 2013 hearing by letter in July 2013, but did not attend the hearing or subsequently request a new hearing. Thus, her hearing request is deemed withdrawn. 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 The Veteran contends that she should be granted a separate rating for neurological abnormalities associated with her service-connected back disability. Private medical records show a diagnosis of radiculitis since January 2011. However, it is unclear whether the radiculitis is associated with the Veteran's service-connected back disability. An April 2012 VA examination report concluded that the Veteran does not have radiculopathy or any other neurological manifestations. The examiner did not address the likelihood of whether the Veteran's competently reported neurological symptoms were associated with the service-connected back disability. As there is conflicting evidence as to whether the Veteran has any neurological symptomatology and there is no evidence as to whether, if such is present, it is associated with the Veteran's service-connected back disability, an examination is necessary. Accordingly, the case is REMANDED for the following action: 1. Obtain copies of any outstanding records of VA or private medical treatment pertinent to the Veteran's service-connected back disability; including any associated neurologic impairment. 2. Then, schedule the Veteran for a VA examination with an appropriate medical professional to determine the nature, extent, frequency and severity of any orthopedic and neurologic impairment related to or part of the Veteran's back disability, to include any neurological manifestations associated with the back disability. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner is to identify all spinal and neurologic pathology found to be present. The examination must include the results of all indicated orthopedic and neurologic tests and studies necessary. The examiner is to determine whether the service-connected back disability has been productive of any incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician. The examiner must discuss the nature and severity of any lower extremity radiculopathy or neuropathy found to be present, and opine whether any neurologic abnormality found is associated with the Veteran's service-connected back disability. The examiner must also state whether the Veteran has any other objective neurologic abnormalities associated with her the service-connected back disability, such as any bowel or genitourinary pathology. After all necessary tests are conducted, the examiner must opine as to the overall impact of the Veteran's service-connected back disability on her ability to work. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. Then, readjudicate the appeal. The RO must expressly consider whether the Veteran is entitled to extraschedular rating under 38 C.F.R. § 3.321 in light of statements that her service-connected back disability caused her to miss over 70 days of work. If the benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ RONALD W. SCHOLZ 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).