Citation Nr: 1309368 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 06-28 213 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to a disability rating in excess of 40 percent for service-connected spondylothisthesis, spondylolysis, disc bulging, and foraminal encroachment of L5-S1. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from December 1969 to September 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in June 2004 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2008. A transcript of that hearing is of record. A July 2008 Board decision denied the issue on appeal. However, in February 2011 the Board vacated the July 2008 Board decision and remanded the claim for further evidentiary development. After completing the requested actions to the extent possible, the RO continued the denial of the claim as reflected in the April 2012 supplemental statement of the case (SSOC) and returned this matter to the Board for further appellate consideration. The Board also remanded the issue of entitlement to helpless child benefits on the basis of permanent incapacity for self-support before attaining the age of 18 in February 2011. In an April 2012 rating decision, the VA Appeals Management Center (AMC) granted entitlement to permanent incapacity for self-support for the Veteran's daughter. The Veteran has not expressed disagreement with any aspect of this determination. Since this represents a full grant of the benefit on appeal concerning this issue, it is no longer in appellate status. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). The Board remanded the issue on appeal for a second time in August 2012. The Board's August 2012 remand directives and the subsequent actions of the RO and AMC will be further discussed below. The Veteran's claim has been returned to the Board. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action is required. REMAND In the August 2012 remand, the Board concluded that information provided in the September 2008 VA examination report was not specific enough to determine whether the Veteran meets the next higher disability rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Accordingly, the Board, in pertinent part, directed that the Veteran was to be provided another VA examination in connection with his claim which adequately described the severity, frequency and manifestation of his service-connected low back disability. In September 2012, the AMC requested that another examination be scheduled, and the Board's August 2012 remand directives were recounted. The Veteran was provided a VA examination in connection with his claim in November 2012; however, the Board concludes that this examination is inadequate for the purpose of evaluating the Veteran's increased rating claim. Specifically, the examiner stated at the end of the report "I have described the frequency of incapacitating episodes during the year 2012." However, review of the November 2012 VA examination report reflects that, while the examiner documented the time that the Veteran lost from work due to his service-connected low back disability, there is no statement addressing incapacitating episodes as per Note (1) of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (i.e., a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.) As such, the Board finds there has not been adequate compliance with the August 2012 remand directives and, having no discretion in the matter, must remand the appeal for compliance with the remand directive. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Stegall v. West, 11 Vet. App. 268 (1998) (the Veteran has right to VA compliance with terms of Board remand order). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination of the lumbar spine to determine the nature and current level of severity of his service-connected spondylothisthesis, spondylolysis, disc bulging, and foraminal encroachment of L5-S1. The claims file and Virtual VA file must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner must record all pertinent medical complaints, symptoms and clinical findings in detail. As to all information and opinions requested below, a complete explanation must be provided. a. The examiner should state whether there is any evidence of favorable or unfavorable ankylosis in the lumbar spine. Range of motion testing should also be completed and the examiner should accurately report the point (in degrees) at which pain is objectively recorded. It should also be determined whether there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's lumbar spine, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. An opinion should also be provided regarding whether any pain found on examination limits functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. b. The examiner should also identify any neurological impairment(s) associated with the Veteran's back disability, including any impairment manifested by pain and numbness and describe any symptoms and functional limitations associated with such impairment(s). c. The examiner should indicate whether the Veteran experiences incapacitating episodes (a period of acute signs and symptoms that requires physician-prescribed bed rest) and frequency and total duration of such episodes over the course of a year. The examiner is asked to be as specific as possible with respect to the frequency and total duration of any incapacitating episodes. 2. Upon completion of the foregoing and any other development deemed necessary, readjudicate the Veteran's claim of entitlement to an increased rating for spondylothisthesis, spondylolysis, disc bulging, and foraminal encroachment of L5-S1, based on a review of the entire evidentiary record. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, subject to current appellate procedure, the case should be returned to the Board for further consideration, if in order. 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 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). _________________________________________________ U.R. POWELL 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).