Citation Nr: 1333062 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 07-01 654 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Anchorage, Alaska THE ISSUES 1. Entitlement to service connection for degenerative disc disease of the lumbar spine to include as secondary to service-connected disabilities. 2. Entitlement to an initial rating higher than 20 percent for lumbar strain. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Slovick, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1980 to July 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2005 of a Department of Veterans Affairs (VA) Regional Office (RO). This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2005 of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2008, the Veteran appeared at a hearing before a Veterans Law Judge. A transcript of that hearing is in the Veteran's file. Since the hearing, the Veterans Law Judge has retired from the Board. In December 2011, the Veteran was offered the opportunity for another hearing before a Veterans Law Judge, who would decide the appeal. As there is no record of response from the Veteran, another hearing is deemed waived. On the claim of service connection for degenerative disc disease of the lumbar spine, in August 2008, in April 2012, and in December 2012, the Board remanded the claim for further development. In October 2012, the Veteran, through her representative, raised the claim of service connection for migraine headache, which is referred to the RO for appropriate action. The Board is deferring appellate review of the claim for increase for lumbar strain until the claim of service connection for the degenerative disc disease of the lumbar spine is finally adjudicated. The claim of service connection for degenerative disc disease of the lumbar is REMANDED to the RO via the Appeals Management Center in Washington, DC. REMAND Although there has been extensive development of the claim of service connection for degenerative disc disease of the lumbar spine, the VA examination in January 2013 is inadequate to decide the applicable theories of service connection, specifically, direct service connection. Once VA has provided a VA examination, it is required to provide an adequate one and further development under the duty to assist is needed. Accordingly, the case is REMANDED for the following action: 1. In light of 38 C.F.R. § 20. 19.31, ask the Veteran whether she waives the issuance of the statement of the case on the claim of service connection for degenerative disc disease, and, if she does not, furnish the Veteran a statement of the case. 2. Arrange to have the Veteran's file reviewed by a VA examiner, who has not previously examined the Veteran, to determine: a). Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability approximately 50 percent), less likely than not (probability less than 50 percent) that degenerative disc disease of the lumbar spine as shown after service in June 2006 (volume 5: green tabs; yellow tab: dated January 2008) is a progression of the in-service finding by MRI of annular bulge at L4-5 (volume one: envelope 1), which was interpreted as normal, or the development of a new and separate condition? In formulating the opinion, the VA examiner is asked to explain whether there is a sound medical reason to conclude that a finding of annular bulge at L4-5 by MRI in service is not indicative of degenerative disc disease. In the alternative: b). Whether it is more likely than not (probability greater than 50 percent), at least as likely as not (probability approximately 50 percent), less likely than not (probability less than 50 percent) that degenerative disc disease of the lumbar spine was caused by or aggravated by the service-connected disabilities of the right hip and of the feet? The examiner is advised that the term "aggravation" means a permanent increase in the claimed disability; that is, an irreversible worsening of the condition beyond the natural clinical course and character of the condition due to service-connected disability as contrasted to a temporary worsening of symptoms. 3. After the above development, adjudicate the claim of service connection for degenerative disc disease on a direct and secondary basis. If there is a material change in the claim for increase for lumbar strain, adjudicate the claim. If any claim is denied, furnish the Veteran and her representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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). _________________________________________________ George E. Guido Jr. 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).