Citation Nr: 1336181 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 06-07 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 10 percent for a low back disorder manifested by chronic low back pain and a herniated nucleus pulposus with spinal stenosis at LS-S1. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from November 2000 to November 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Due to the location of the Veteran's residence, jurisdiction of his appeal is with the RO in St. Petersburg, Florida. A Board decision in December 2008 denied an initial rating in excess of 10 percent for the Veteran's lumbar spine disability. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in October 2009, the Court granted a Joint Motion for Remand (JMR) by the Veteran and VA General Counsel, which was incorporated by reference, to vacate the Board's decision and remand the case for readjudication in accordance with the JMR. The case was subsequently remanded in May 2010, March 2012 and May 2013 for further development. As discussed below, the Board's most recent remand directives were not complied with and another remand is necessary. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. This 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 Regrettably, another remand is necessary. As noted by the Board in May 2013, the AMC referred the claim to the Director of the VA's Compensation and Pension Service for extraschedular consideration of a higher initial rating for a low back disability. The Director in his April 2013 response conceded the existence of evidence of an exceptional or unusual disability picture but found that "the evidence is unclear as to what extent the non-service connected bilateral hip conditions and service-connected back condition contribute to the Veteran's disability picture." The Director further found that medical evidence indicated that the Veteran's thoracolumbar disability limited his bending ability only to a mild degree and that, "[w]hen comparing the level of severity and the symptomatology of the service-connected back condition with the rating schedular criteria the current evaluation is adequate, rendering the disability picture inadequate." He additionally determined that the evidence in its entirety "presents no evidence of an exceptional or unusual disability picture...solely due to the Veteran's service connected disabilities" and concluded that the assignment of an extraschedular evaluation was not warranted. The Board determined that the opinion was unclear. For instance, if the evidence is unclear as to the impact of the Veteran's service-connected low back disability picture, it is equally unclear how it can also be determined that the evidence in its entirety fails to identify an exceptional or unusual disability picture due to service connected disablement. Moreover it cannot be ascertained on what basis the Director determined that because the schedular evaluation for the low back was adequate, how it can then be concluded that the disability picture is inadequate. The Board subsequently remanded to obtain clarification from the Director. The AMC was directed to return the April 2013 memorandum to the Director for clarification of prior entries as to the Veteran's entitlement to an extraschedular rating for his service-connected lumbar spine disability. Specifically, the Board directed that clarification was needed as to whether the record is unclear as to what extent the Veteran's service connected low back disorder contributes to his disability picture; how if it is determined that the schedular evaluation previously assigned is deemed adequate can the disability picture be rendered inadequate; and whether as indicated there is any evidence of an exception or unusual disability picture due solely to the Veteran's service-connected low back disability. A new opinion was received in July 2013. This additional opinion did not reference reviewing the April 2013 memorandum, nor did it address all of the Board's clarification points. While the opinion concludes that the evidence does not support the contention that the Veteran's low back disability was so exceptional or unusual as to render the use of the regular rating schedule standards impractical, it does not address the Board's other clarification points. Specifically, the opinion does not address the previous finding that the record is unclear as to what extent the Veteran's service connected low back disability contributes to his disability picture, nor does it address how if it is determined that the schedular evaluation previously assigned is deemed adequate can the disability picture be rendered inadequate. Where the remand orders of the Board or the Court are not complied with, the Board errs as a matter of law when it fails to ensure compliance, and further remand will be mandated. Stegall, 11 Vet. App. 268 (1998). Accordingly, another remand of this issue is necessary. Additionally, the most recent supplemental statement of the case (SSOC) references a VA examination conducted on June 6, 2013. While no VA examination that date is of record, the Veteran's most recent VA treatment record is dated June 6, 2013. It is unclear whether a VA examination was actually performed on June 6, 2013, or the AMC was mistakenly referring to a treatment record. On remand, if a VA examination was indeed performed, the record should be obtained. Accordingly, the case is REMANDED for the following action: 1. Return the April 2013 memorandum from the Director of the VA's Compensation and Pension Service to the Director for clarification of prior entries as to the Veteran's entitlement to an extraschedular rating for his service-connected low back disability. Clarification is needed as to whether the record is unclear as to what extent the Veteran's service-connected low back disorder contributes to his disability picture; and how if it is determined that the schedular evaluation previously assigned is deemed adequate can the disability picture be rendered inadequate. 2. Ensure that the clarification opinion complies with (answer the questions posed in) this Remand. If any opinion is insufficient, it should be returned to the Director for corrective action, as appropriate. 3. Obtain a copy of the June 6, 2013, VA examination from the Biloxi, Mississippi VA Medical Center (VAMC) if an examination was actually performed. 4. Then, readjudicate the issue on appeal. If any benefit remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. The Veteran 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). _________________________________________________ MILO H. HAWLEY 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).