Citation Nr: 1514563 Decision Date: 04/03/15 Archive Date: 04/09/15 DOCKET NO. 10-47 897 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent prior to November 9, 2011, and 20 percent thereafter, for osteoarthritis of the lumbar spine with degeneration of the lumbar intervertebral disc. 2. Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU). WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristi L. Gunn, Counsel INTRODUCTION The Veteran served on active duty from September 1975 to April 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from July 2009 and May 2010 ratings decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In the July 2009 rating decision, the RO granted service connection for osteoarthritis of the lumbar spine and assigned a 10 percent disability rating, effective November 17, 2008. In a July 2012 rating decision, the RO increased the Veteran's service-connected lumbar spine disability evaluation to 20 percent disabling, effective November 9, 2011. The Veteran wants an even higher rating. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating it is presumed he is seeking the highest possible rating, unless he expressly indicates otherwise). The current appeal was processed as part of the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. In May 2014, the Veteran testified at a videoconference before the undersigned Acting Veterans Law Judge (VLJ.) A copy of the transcript is of record. In April 2013 and August 2014, the Board remanded the claims for additional development and adjudicative action. The case has been returned to the Board for further appellate review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In August 2014, the Board directed that the RO schedule the Veteran for a VA examination to assess the current severity of his service-connected lumbar spine disability. Specifically, the Board requested that the VA examiner identify whether the Veteran's lumbar spine disability results in any neurological disability, other than radiculopathy of the lower extremities, specifically commenting on bowel, bladder, and erectile impairment, and to provide an opinion regarding the functional impact of the Veteran's lumbar spine disability and bilateral radiculopathy on his employability. According to the September 2014 Back Conditions Disability Benefits Questionnaire (DBQ), the VA examiner failed to examine and/or comment on any neurological abnormalities associated with the Veteran's service-connected lumbar spine disability. Additionally, the VA examiner did not give an opinion regarding the Veteran's unemployability, indicating that the question as to whether the Veteran is able to obtain or maintain substantially gainful employment is not a medical determination as much as a "legal/vocation one." As such, because the examiner did not comply with the remand directives concerning these claims, the matters are again remanded. Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, these claims are again REMANDED for the following additional action: 1. Schedule the Veteran for a VA orthopedic and neurological examination to determine the nature and severity of his service-connected lumbar spine disability. The examination must be conducted by an examiner other than the September 2014 examiner. The Veteran's electronic file, to include a copy of this Remand, should be made available to and reviewed by the examiner. The examination report should reflect that such review was accomplished. Any indicated diagnostic tests and studies should be accomplished. All pertinent symptomatology and findings should be reported in detail, including range of motion (ROM) testing for the lumbar spine. In reporting the results of range of motion testing, the examiner must identify any objective evidence of pain and the specific limitation(s) of motion, if any, accompanied by pain. To the extent possible, the examiner must assess the degree of severity of any pain. Tests of joint movement against varying resistance must be performed. The extent of any incoordination, weakened movement, and excess fatigability on use must also be described by the examiner. The examiner must assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. The examiner must 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. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. The examiner must identify whether the Veteran's lumbar spine disability results in any neurological disability, other than radiculopathy of the lower extremities, specifically commenting on bowel impairment, bladder impairment, erectile dysfunction, and urinary incontinence. The examiner must also further clarify whether a diagnosis of intervertebral disc syndrome (IVDS) applies, and if so indicate the frequency and severity of any IVDS exacerbations and/or incapacitating episodes. The examiner must also provide an opinion concerning the impact of the Veteran's degenerative disc disease of the lumbar spine and neuropathy of the left lower extremity on his ability to work to include whether the Veteran is unemployable because of his service-connected disabilities. It is imperative the examiner discuss the rationale of the opinion in response to this question, whether favorable or unfavorable, if necessary citing to specific evidence in the file supporting conclusions. All examination findings, along with the complete rationale for all opinions expressed, should be set forth in the examination report. 2. After accomplishing any additional development deemed appropriate, readjudicate the claims on appeal. If the benefits sought in connection with the claims remain denied, the Veteran should be provided with an appropriate Supplemental Statement of the Case (SSOC) and given the opportunity to respond. 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 2014). _________________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).