Citation Nr: 1342999	
Decision Date: 12/27/13    Archive Date: 01/07/14

DOCKET NO.  09-30 870	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for lumbar spondylosis with degenerative disc disease.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Dustin Ware, Associate Counsel


INTRODUCTION

The Veteran had active military service from February 1991 to February 1995.

This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.

The Veteran requested a hearing before the Board of Veterans' Appeals (Board), and this hearing was scheduled for January 2011.  However, in a January 2011 letter the Veteran informed the Board that he would not be appearing and instructed the Board to proceed with the case.  As such, his request for a hearing is considered withdrawn.  38 C.F.R. § 20.702(e) (2012). 

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 Veteran asserts entitlement to an increased evaluation for lumbar spondylosis with degenerative disc disease, currently evaluated as 10 percent disabling.  The record indicates he was last provided a VA examination addressing his back disability in October 2009, a period of approximately four years.  

In a November 2013 brief, the appellant's representative argued that the October 2009 VA examination does not reflect the current severity of his back disability.  In light of the appellant's contentions of a worsening back condition and the length of time since his back was last evaluated, the Board finds a new examination is warranted to address the severity of his service-connected lumbar spondylosis with degenerative disc disease.  See 38 C.F.R. § 3.159; see also VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination); Green v. Derwinski, 1 Vet. App. 121, 124   (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination).



Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA spine examination to determine the current severity of all manifestations of his service-connected lumbar spondylosis with degenerative disc disease.  The claims file must be provided to the examiner and reviewed in conjunction with the examination.  The examination must include range of motion studies of the thoracolumbar spine or cervical spine.  In reporting the range of motion findings, the examiner must comment on the extent of any painful motion, functional loss due to pain, weakness, excess fatigability, and additional disability during flare-ups.  The examiner should further address whether, and if so to what extent, there is ankylosis of the thoracolumbar spine or cervical spine.  Also, the examiner should identify any evidence of associated neurological disorders.  Finally, the examiner should discuss whether the Veteran's disability has resulted in doctor-prescribed bed rest; if so, the examiner should address the frequency and duration of such bed rest in the past 12 months.  

2. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response.

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).



_________________________________________________
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).