Citation Nr: 1338112 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 07-39 374 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to an increased rating for lumbar spine degenerative disc disease status post L5-S1 discectomy, currently rated as 40 percent disabling (excluding the period during which a temporary total evaluation was assigned). 2. Entitlement to an increased rating for radiculopathy of the right lower extremity, evaluated as 10 percent disabling, prior to August 4, 2009, and 20 percent disabling thereafter. 3. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant served on active duty from January 1973 to July 1974 and from November 1975 to September 1986. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. In January 2007, the appellant presented testimony at a personal hearing conducted at the Detroit RO before a Decision Review Officer (DRO). A transcript of this hearing has been associated with the appellant's claims folder. This case was previously before the Board. In April 2009, the matters were remanded to the agency of original jurisdiction (AOJ) for additional development. In a May 2009 rating decision, the AOJ assigned a temporary total evaluation based on surgical treatment necessitating convalescence, from January 27, 2009, and a 40 percent rating has been assigned from May 1, 2009. In addition, an August 2010 rating decision shows that the evaluation for right leg radiculopathy increased to 20 percent, from August 4, 2009. In June 2011, the Board denied the appellant's claim for an increased rating for lumbar spine degenerative disc disease and remanded the claim for entitlement to an increased rating for radiculopathy of the right lower extremity. The appellant appealed the Board's denial of the claim for an increased rating for lumbar spine degenerative disc disease to the U.S. Court of Appeals for Veterans Claims (Court). In November 2011, her representative and VA's Office of General Counsel, representing the Secretary of VA, filed a Joint Motion requesting that the Court vacate the Board's decision and remand the case for readjudication in compliance with directives specified. The Court issued an order in December 2011, granting the Joint Motion, and returned the case to the Board. In June 2012, the Board denied the appellant's claim for entitlement to an increased rating for radiculopathy of the right lower extremity and remanded the issues of entitlement to an increased rating for lumbar spine degenerative disc disease and entitlement to a TDIU. The appellant appealed the Board's denial of the claim for entitlement to an increased rating for radiculopathy of the right lower extremity to the U.S. Court of Appeals for Veterans Claims (Court). In March 2013, her representative and VA's Office of General Counsel, representing the Secretary of VA, filed a Joint Motion requesting that the Court vacate the Board's decision and remand the case for readjudication in compliance with directives specified. The Court issued an order that same month, granting the Joint Motion, and returned the case to the Board. Following additional development, the issues of entitlement to an increased rating for lumbar spine degenerative disc disease and entitlement to a TDIU have also been returned to the Board. 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 The appellant was provided with a RO hearing in January 2007 before a Decision Review Officer. The hearing only addressed the issue of entitlement to a higher rating for a back disability. As discussed in the March 2013 Joint Motion, a July 2006 rating decision denied an evaluation in excess of 10 percent for the appellant's service-connected right leg radicuopathy, as well as her claim for a higher rating for degenerative disc disease of the lumbar spine. The Decision Review Officer at the RO hearing in January 2007 identified the issue on appeal as an "increased evaluation for low back disability[.]" The March 2013 Joint Motion noted that in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010), the Court held that to provide a clear and complete hearing record under 38 C.F.R. § 3.103(c)(2), a VA hearing officer should "fully explain the issues still outstanding that are relevant and material to substantiating the claim," and "suggest that a claimant submit evidence on an issue material to substantiating the claim when the record is missing any evidence on that issue or when the testimony at the hearing raises an issue for which there is no evidence in the record." Id. In her October 2006 notice of disagreement, the appellant discussed problems relating to her back and stated that she had seen a neurosurgeon. The appellant's statements indicate that her notice of disagreement included the denial of an increased rating for radiculopathy, which is related to her service-connected back disability. As the RO hearing Decision Review Officer did not address radiculopathy, the claim must be remanded to provide the appellant with an opportunity to have another RO hearing on that issue. In the June 2012 remand, the Board requested a VA examination to evaluate the appellant's lumbar spine disability. The Board finds that the VA examination is inadequate. The Board asked the VA examiner to identify any neurologic abnormalities related to her degenerative disc disease of the lumbar spine. Section 12(a) of the VA examination report indicates that the appellant did not have radicular pain or any other signs or symptoms due to radiculopathy. The VA examiner stated that the appellant's current symptomatology is inconsistent with radiculopathy. However, in section 12(d), the examiner noted that the appellant had mild radiculopathy on the right and left. Thus, it is unclear from the VA examination report whether the appellant has radiculopathy. The VA examiner stated that the appellant had bilateral radiculopathy documented in EMGs done in 2010/2006, but found that her current description of her bilateral lower extremity/waist pain was not consistent with a lumbar radiculopathy. In another section of the VA examination report, the VA examiner noted that the appellant had sensory polyneuropathy which was not due to the lumbar spine but a metabolic condition. The Board finds that further clarification is needed. The VA examiner did not fully explain why the appellant's left lower extremity radiculopathy was not caused by her service-connected lumbar spine disability. As the VA examination report is inadequate, the claim must be remanded for a new VA examination. The examiner should also address whether the appellant's left lower extremity radiculopathy is aggravated by her service-connected lumbar spine disability. The Board also notes that the AOJ did not adjudicate the appellant's claim for entitlement to a TDIU, as requested in the June 2012 Board remand. In a February 2013 memorandum, the VA Appeals Management Center (AMC) stated that Rice v. Shinseki had been overturned and the issues must first be considered at the RO level, before it may be considered at the appellate level. The AMC should have adjudicated the claim for entitlement to a TDIU, as instructed by the Board in the June 2012 remand. The Court has stated that compliance by the Board or the AOJ is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). Thus, the AOJ should adjudicate the issue of entitlement to a TDIU. Accordingly, the case is REMANDED for the following action: 1. Schedule the appellant for a RO hearing to address the issues of entitlement to an increased rating for radiculopathy of the right lower extremity and entitlement to a TDIU. Document all notice and correspondence relating to the hearing in the claims file. 2. Then, schedule the appellant for a VA examination to determine the current nature and severity of her service-connected degenerative disc disease of the lumbar spine, including any neurological abnormalities. The VA examiner should provide an opinion as to whether it is at least as likely as not (at least a 50 percent probability) the appellant has left lower extremity radiculopathy that is caused or aggravated by her service-connected degenerative disc disease of the lumbar spine. Forward the claims file to the examiner for review. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 3. Thereafter, readjudicate the issues on appeal of entitlement to an increased rating for degenerative disc disease of the lumbar spine, entitlement to an increased rating for radiculopathy of the right lower extremity, and entitlement to a TDIU. If any benefit sought is not granted, issue a supplemental statement of the case and afford the appellant an appropriate opportunity to respond. The case should then be returned to the Board, as warranted. The appellant has 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). _________________________________________________ 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).