Citation Nr: 1334137 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-08 855 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the lumbar spine. 2. Entitlement to a rating in excess of 20 percent for paralysis of the sciatic nerve, right lower extremity, associated with degenerative arthritis of the lumbar spine. 3. Entitlement to a rating in excess of 20 percent for paralysis of the sciatic nerve, left lower extremity, associated with degenerative arthritis of the lumbar spine. 4. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from June 1982 to May 1987. These matters came to the Board of Veterans' Appeals (Board) from an April 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), in which the RO continued a 20 percent rating for the Veteran's degenerative arthritis of the lumbar spine. In July 2012, the Board took jurisdiction of the issue of entitlement to a TDIU per Rice v. Shinseki, 22 Vet. App. 447 (2009). These issues were remanded in July 2012. In a February 2013 rating decision, the RO granted separate 20 percent ratings for paralysis of the bilateral lower extremities associated with his degenerative arthritis of the lumbar spine, effective October 2, 2012. As the ratings assigned to paralysis of the bilateral lower extremities are part and parcel of the rating assigned to degenerative arthritis of the lumbar spine, these issues are now in appellate status. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND A remand confers on the Veteran the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). The Court has indicated that if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance. Id. Given those pronouncements, and as will be discussed below, the fact that the some of the development sought by the Board in this case has not been fully completed, another remand is now unfortunately required. 38 C.F.R. § 19.9 (2013). In the July 2012 Board Remand, it was noted that a March 2009 examiner did not address the effect of flare-ups on the Veteran's spine disability. The Veteran has provided statements concerning periods of intense pain that limit his ability to work and participate with his family. The United States Court of Appeals for Veterans Claims (Court) has held that the rating schedule "does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use including during flare-ups," and that if warranted, a case should be remanded "for the Board to obtain a new medical examination which complies with the requirements of 38 C.F.R. § 4.40, and the medical examiner must be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time." DeLuca v. Brown, 8 Vet. app. 202, 206 (1995) (noting that "these determinations should, if feasible, be 'portrayed' (§ 4.40) in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups"); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (relying on DeLuca for proposition that an adequate joint examination report must comply with § 4.40 and include an "opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time"). In October 2012, the Veteran underwent a VA examination. He reported that he and his fellow workers are sanctioned for taking sick time. He therefore uses his vacation time for sick days. Every year the power plant has an outage for two months, at which time all workers work without a day off, in 12 hour shifts. The Veteran reported that after this his back hurts severely, and he would take about a week of sick time, though taken as vacation. He spent most of this time resting and in bed or in the recliner. Toward the end of this two month period he had to be driven to the door, as he could not walk across the parking lot due to pain. On range of motion testing, flexion was to 40 degrees and painful motion began at 30 degrees. He was able to perform repetitive-use testing and there was no additional limitation in range of motion of the thoracolumbar spine following repetitive-use testing. It was noted that he has functional loss and/or functional impairment due to less movement than normal, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, disturbance of locomotion, and interference with sitting, standing and/or weight-bearing. The examiner, however, did not comment on the effect of flare-ups on the Veteran's spine disability and the examiner did not comment on whether pain could significantly limit functional ability during flare-ups when the joint is used repeatedly over a period of time. Thus, remand is necessary to obtain further opinion. In light of these matters being remanded, associate with the claims folder or Virtual VA updated VA treatment records from the Fayetteville, Arkansas VA Medical Center (VAMC). Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following actions: 1. Associate with the claims folder or Virtual VA updated treatment records from the Fayetteville VAMC for the period from December 12, 2012. 2. Return the claims folder and a copy of this Remand to the October 2012 VA examiner for an opinion regarding the following: Please comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should attempt to estimate additional loss of function during such flare-ups and such additional loss should be expressed in degrees of motion. The examiner should be informed that the Veteran is competent to describe the frequency and severity of his symptoms. A rationale for all opinions should be provided. If the October 2012 VA examiner is unavailable, please refer the case to another physician with appropriate expertise for the requested opinion, and another VA examination should be scheduled if deemed necessary for the examiner to offer an opinion. 3. In the interest of avoiding future remand, the AMC/RO should then review the opinion and/or examination report to ensure that the above questions have been clearly answered and a rationale furnished for all opinions. If not, appropriate action should be taken to remedy any such deficiencies. 4. After completion of the above, review the expanded record and readjudicate the increased rating claims and entitlement to a TDIU. If any of the benefits sought are not granted in full, 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 appellate review. The Veteran and his representative have the right to submit additional evidence and argument on the 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). _________________________________________________ ERIC S. LEBOFF 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) (2013).