Citation Nr: 1333081 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 04-36 503 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to a rating in excess of 20 percent for the Veteran's service-connected lumbosacral strain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from April 1987 to March 1989, and from September 1989 to September 1993. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, that granted a 20 percent disability evaluation for the service-connected lumbosacral strain disability, but denied an evaluation in excess of 20 percent. In March 2008, June 2009, February 2011, and September 2011, the Board remanded the claim for additional development. In August 2012, the Board denied the claim. The appellant appealed to the U.S. Court of Appeals for Veterans Claims (Court). In April 2013, while his case was pending at the Court, the VA's Office of General Counsel and appellant's representative filed a Joint Motion requesting that the Court vacate the Board's August 2012 decision. That same month, the Court issued an Order vacating the August 2012 Board decision. The Veteran testified at a January 2005 hearing before a Decision Review Officer at the RO. A transcript of the proceeding is of record. In addition, in January 2008, he testified during a hearing held at the RO before a Veterans Law Judge. A transcript of that proceeding is of record and has been associated with the claims file. 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 A review of the Joint Motion shows that it was agreed that the Veteran's most recent VA examination, the report of which is dated in January 2012, was inadequate. It was agreed that the report did "not deliver the level of detail required" because the only reference to any flare-ups in Appellant's lumbosacral spine by the VA examiner is a notation that Appellant experienced bi-weekly flare-ups without further information. Citing Mitchellv. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). It was further agreed that this examination report failed to comply with the Board's September 2011 remand instructions (presumably as to required findings pertaining to functional loss). Accordingly, on remand, the Veteran should be afforded another examination. The appellant is hereby notified that it is the appellant's responsibility to report for the examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158 and 3.655 (2013). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain updated VA treatment records from the VA Medical Center in New Orleans or any other facility the Veteran may have received treatment for any time after December 2007, and contact the Veteran to inquire whether he has undergone any other treatment for his low back disorder since that time. If the Veteran indicates that he has received any such treatment or evaluations the RO/AMC should obtain and associate those records with the claims file. 2. Thereafter, the RO/AMC should schedule the Veteran for a comprehensive VA examination to determine the current nature and severity of his low back disability. a) The examiner is requested to review the claims file, and following this review and examination, the examiner should report complaints and clinical findings pertaining to both conditions in detail, including range of motion studies. b) The examiner should also indicate whether the Veteran has additional functional loss due to flare-ups, fatigability, incoordination, and pain on movement pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). If the examiner finds that there is additional limitation of motion due to flare-ups, fatigability or incoordination, the extent of such limitation of motion should be stated in degrees. c) Notation should also be made as to the degree of functional impairment attributable to the Veteran's low back disability and its impact on his employment and activities of daily living. d) A clear rationale must be provided for all opinions expressed and a discussion of the facts and principles involved would be of considerable assistance to the Board. 3. To help avoid future remand, the RO/AMC must ensure that all requested action has been accomplished (to the extent possible) in compliance with this REMAND. If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 4. When the requested development has been completed the case should again be reviewed by the RO, to include consideration of any additional evidence submitted. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ JONATHAN B. KRAMER 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).