Citation Nr: 1339684 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 11-00 636 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a rating in excess of 20 percent for intermittent low back strain status post L5-S1 diskectomy with residual scar and decreased right ankle jerk with deep tendon reflect testing. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from July 2000 to July 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2009 decision of the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2012, the Veteran testified before the undersigned via video conference from the RO. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration. At his recent hearing, the Veteran described the current symptoms that he ascribes to his low back disorder. He indicated that he had muscle spasms which occurred at least 4 times per month, back pain, limitations with regard to his movement, and limitations with regard to his ability to lift objects over 5 pounds. It was asserted that he has a tender surgical scar and also suffers from incapacitating episodes. Further, it was contended that although the Veteran was examined most recently in October 2011, a goniometer was not used to measure his range of motion. The Board observes that the use of a goniometer in the measurement of limitation of motion is indispensable in examinations conducted for VA rating purposes. 38 C.F.R. § 4.46 (2013). In addition, the most recent VA examination did not reflect that the Veteran's back scar is symptomatic, but he has reported otherwise, within his lay ability to do so. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran stated that he would be willing to report for a new VA examination. Accordingly, he should be so scheduled. Since this case is being remanded, the Veteran's updated VA treatment records from the Atlanta VA Medical Center as well as the Athens, Georgia VA outpatient clinic should be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the record copies of all clinical records of the Veteran's treatment at the Atlanta VA Medical Center as well as the Athens, Georgia VA outpatient clinic. 2. The Veteran should be afforded a VA examination for the purpose of determining the nature, and extent of the Veteran's service-connected low back disorder. The record must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination. All indicated tests and studies should be performed. The examiner should be requested to report the range of motion of the low back in degrees of arc using a goniometer. The examiner should note that normal ranges of motion of the thoracolumbar spine for VA purposes are 0 to 90 degrees in flexion, 0 to 30 degrees in extension, 0 to 30 degrees in left and right lateral flexion, and 0 to 30 degrees in left and right rotation. All findings and diagnoses should be reported in detail. If the Veteran demonstrates limitation of motion, the examiner should be requested to specifically comment upon the extent, if any, to which pain, supported by adequate pathology and evidenced by the visible behavior of the veteran, results in functional loss. The examiner should carefully elicit all of the Veteran's subjective complaints concerning the thoracolumbar spine and offer an opinion as to whether there is adequate objective pathology present to support the Veteran's subjective complaints. To the extent possible, the examiner should assess the extent of any pain and describe the extent of any incoordination, weakened movement, and excess fatigability on use. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the Veteran describes flare-ups), and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The existence of any ankylosis of the spine should also be identified. The examiner should determine if the Veteran has intervertebral disc syndrome associated with his low back disability and should also assess if the Veteran has any neurological manifestations to include sciatica as well as any bowel and bladder complaints. If so, these neurological manifestations should be identified and the severity thereof described in detail. If possible, the examiner should indicate whether the Veteran has had incapacitating episodes over the last 12 months, and, if so, the number of episodes and the duration of the episodes. The examiner should examine all scarring located on the spine due to the low back disorder and surgery therefore. The scarring should be described in detail. Any opinions expressed by the examiner must be accompanied by a complete rationale. 3. The AMC should review the medical opinion obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, AMC should return the case to the examiner for completion of the inquiry. 4. The AMC should then readjudicate the claim on appeal in light of all of the evidence of record, and taking into consideration whether a separate rating is warranted for any low back scarring. If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto. The appellant 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). _________________________________________________ KELLI A. KORDICH Acting 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).