Citation Nr: 1333446	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  10-26 136	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to a rating in excess of 20 percent for intervertebral disc syndrome at L4-5 and L5-S1.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and spouse.


ATTORNEY FOR THE BOARD

J. Chapman, Associate Counsel


INTRODUCTION

The appellant served on active duty from May 1969 to January 1973 and from September 1981 to June 1998.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision which continued the 20 percent rating for the Veteran's low back.  A notice of disagreement was received in April 2009, a statement of the case was issued in March 2010, and a substantive appeal was received in May 2010.  In October 2012, a Travel Board hearing was held.

The appeal is being 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 October 2012, the Veteran presented testimony at a Travel Board hearing claiming that his low back disability has worsened since last evaluated by VA.  He stated that the pain is getting progressively worse and further that he experiences daily sharp pain that radiates down his legs.  See July 2010 representative statement.

The Board notes that the Veteran was last afforded a VA examination for his service-connected low back disability in March 2008.  While a new examination is not required simply because of the time which has passed since the last examination, VA's General Counsel has indicated that a new examination is appropriate when there is an indication of an increase in severity since the last examination.  VAOPGCPREC 11-95 (1995).  Under the circumstances, the Board finds that another VA examination is appropriate.


Accordingly, the case is REMANDED for the following actions:

1.  The Veteran should be scheduled for an appropriate VA examination to determine the severity of his service-connected low back disability.  It is imperative that the claims folder be reviewed in conjunction with the examination.  If deemed medically appropriate, weight-bearing x-rays as requested by the Veteran should be considered.  All special tests and clinical findings should be clearly reported to allow for application of VA rating criteria.

Range of motion testing should be accomplished.  The examiner should also report the point (in degrees) that any range of motion is limited by pain.  Any additional functional loss due to weakness, fatigue, and/or incoordination should be reported, to include an estimate of any additional limitation of motion during flare-ups.  

The examiner should also clearly report whether there are any associated neurologic abnormalities, including, but not limited to, bowel or bladder impairment.

The examiner should also report the frequency and duration of any incapacitating episodes during the past 12 months. 

2.  After completion of the above and any further development deemed necessary by the AMC/RO, the issue on appeal should be readjudicated.  The Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond.  Thereafter, the case should be returned to the Board for further appellate review. 	

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 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).



_________________________________________________
ALAN S. PEEVY
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).