Citation Nr: 1338182 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 09-32 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a rating in excess of 20 percent for lumbosacral strain. REPRESENTATION Appellant represented by: Delaware Commission of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from January 1983 to November 1985 and from April 1989 to June 1991 (and had some Reserve service). This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Wilmington, Delaware Department of Veterans Affairs (VA) Regional Office (RO), which continued a 20 percent rating for lumbosacral strain. In November 2012 a Travel Board hearing was held before the undersigned; a transcript is associated with the record. In March 2013, this case was remanded to the RO for additional development. A September 2013 rating decision granted service connection for radiculopathy of both lower extremities as secondary to the service-connected lumbosacral strain. The case is in the jurisdiction of the Philadelphia Pa. RO. 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 on his part is required. REMAND Further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claim. See 38 C.F.R. § 3.159. The Board remanded this matter, in part, to obtain an orthopedic examination of the Veteran to determine the nature, etiology, and current severity of his low back disability. It was requested that for any diagnosed entity other than lumbosacral strain (e.g., degenerative disc disease), the examiner should indicate whether such is part and parcel of/due to/evolved from the service-connected lumbosacral strain or whether it is a separate and distinct entity, with separate etiology and symptoms. On August 2013 VA examination, thoracolumbar disc disease was diagnosed in addition to lumbosacral strain; the examiner did not offer an opinion as to whether the disc disease is part and parcel of/due to/or evolved from the service-connected lumbosacral strain or whether it is separate and distinct entity. Accordingly, this examination report is inadequate for rating purposes and a remand to secure a supplementary opinion that rectifies the omission is necessary. Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following: 1. The Veteran's claims file should be returned to the August 2013 examiner for review and a supplementary medical opinion regarding the nature and etiology of his back disability. Specifically, the examiner should provide an opinion that indicates (with explanation of rationale) whether the thoracolumbar disc disease that has been diagnosed is part and parcel of/due to/or evolved from the Veteran's service-connected lumbosacral strain or whether it is a separate and distinct entity, with separate etiology and symptoms. Please cite to the factual data that support the conclusion. 2. The RO should then review the record and readjudicate the claim (addressing first the threshold matter of whether or not the disc pathology reported is part and parcel of the service-connected lumbosacral strain disability entity.) (If not, the Veteran must be so advised, and notified of his appellate rights as to such determination). If the benefit sought remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, 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). _________________________________________________ GEORGE R. SENYK 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).