Citation Nr: 1416545 Decision Date: 04/14/14 Archive Date: 04/24/14 DOCKET NO. 09-25 647 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to restoration of a 40 percent rating for recurrent disc herniation status post L5-S1 diskectomy. 2. Entitlement to an evaluation greater than 10 percent for recurrent disc herniation status post L5-S1 diskectomy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Rebecca Feinberg, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to July 1983 and from May 1985 to July 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. A review of the Virtual VA paperless claims processing system and Veterans Benefits Management System electronic file does not reveal any additional documents pertinent to the present appeal. In November 2012, the Board issued a decision denying the Veteran's claims. The Veteran subsequently appealed that decision to the United States Court of Appeals for Veterans Claims (Court). While that appeal was pending at the Court, the Veteran's attorney and VA's Office of General Counsel issued a December 2013 Joint Motion for Remand. In a December 2013 Order, the Court granted the Joint Motion for Remand, vacating the Board's decision and remanding the case 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 Board finds that a remand is necessary in this case. A November 2004 VA hospital discharge report shows that the Veteran underwent diskectomy. However, no records of the surgery other than the discharge summary are associated with the claims file. These need to be obtained and associated with the claims file. Furthermore, the claims file should be submitted to an examiner to review the VA examinations dated in February 2005, May 2006, and June 2007 and provide an opinion as to whether the Veteran had intervertebral disc syndrome at that time and, if so, whether it improved at any subsequent time. Accordingly, the case is REMANDED for the following action: 1. Obtain all available records regarding the Veteran's November 2004 hospitalization for diskectomy, other than the discharge summary, from the VA medical center in Richmond, Virginia and associate them with the claims file. 2. Submit the claims file to a qualified provider to provide an opinion regarding the Veteran's back disability. The examiner is asked to review the claims file, to specifically include: (1) the November 2004 surgery and hospitalization records; (2) the February 2005 VA examination report; (3) the March 2005 VA outpatient record showing continuing left leg pain; (4) the April 2006 private report of an EMG showing the presence of a chronic L5 radiculopathy on the left side; (5) the May 2006 VA examination report; and (6) the June 2007 VA examination report. The examiner is then asked to provide an opinion as to whether the Veteran's spine disability improved as compared to VA examination reports dated in August 1996, January 2000, and March 2004. If the examiner finds that the disability has improved, he or she should also provide an opinion as to whether this improvement is sustained and whether it will be maintained under the ordinary conditions of life. If such improvement is shown, the examiner is asked to provide the date on which this sustained improvement was first demonstrated. The examiner is also asked specifically to opine as to whether the Veteran has intervertebral disc syndrome or other disc disease of the lumbar spine and, if so, when it first manifested. Furthermore, the examiner is asked to comment on whether the disc disease, if present at any time, ever improved or resolved, providing the applicable date in either case. The examiner is asked to reference and consider the April 2006 EMG report as compared to the May 2006 VA examination report in providing this opinion and explanation. A rationale should be provided for each opinion given. If the examiner cannot provide a rationale without resorting to speculation, such conclusion should be explained. 3. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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. 2013). _________________________________________________ CHERYL. L. MASON 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).