Citation Nr: 1533427 Decision Date: 08/06/15 Archive Date: 08/20/15 DOCKET NO. 12-24 327A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a higher initial rating for degenerative disc disease and degenerative joint disease of the lumbar spine, currently evaluated as 40 percent disabling. 2. Entitlement to a higher initial rating for atrophy of the left calf with sciatic nerve damage, currently evaluated as 40 percent disabling. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Coyle, Counsel INTRODUCTION The Veteran served on active duty from April 1987 to April 2007. These matters are before the Board of Veterans' Appeals (Board) on appeal of a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. During the pendency of the appeal, the RO awarded an increased evaluation for the service-connected left calf disability from 10 percent to 40 percent, effective May 1, 2007, and for the service-connected back disability, from 20 percent to 40 percent, effective September 12, 2012. On a claim for an original or increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Where a claimant has filed a notice of disagreement as to a RO decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the appeal. Id. Thus, the issues remain in appellate status. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND A September 2012 evaluation of the Veteran's spine and left calf by medical professionals at the Travis Air Force Base Medical Center indicates that these disabilities have increased in severity since the Veteran was last evaluated by VA, which occurred in 2011. Indeed, this evaluation report appears to have formed the basis for a staged increased rating for these disabilities. Under these circumstances, a current VA examination is appropriate. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). Updated treatment records from VA and military sources also should be obtained. 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify the places at which he has received relevant treatment since 2011, the record of which should be sought. In any event, attempt to obtain copies of the Veteran's VA treatment since November 2011. 2. Schedule the Veteran for a VA spine examination by an appropriate medical professional. The claims file should be reviewed by the examiner. The examiner should record the Veteran's reported symptoms of his lumbar spine disability and all clinical findings, to include his ranges of thoracolumbar spine motion and whether there is ankylosis of the thoracolumbar spine. To the extent possible, functional losses should be expressed in terms of degrees of loss of range of motion. The impact of the Veteran's service-connected lumbar spine disability on his activities also should be expressed. 3. Schedule the Veteran for a VA examination of his left lower extremity by an appropriate medical professional. The claims file should be reviewed by the examiner. The examiner should identify all impaired muscles of the left leg, and discuss the severity of the impairment of those muscles in terms of slight, moderate, moderately severe, and severe, including any muscle impairment of the affected muscle groups. The examiner also should identify all impaired nerves in the left leg, and discuss the extent, if any, of incomplete paralysis of these nerves in terms of slight, moderate, moderately severe, and severe. If there is complete paralysis of any nerve, that should be indicated. The impact of the Veteran's service-connected left lower extremity disability on his activities also should be expressed. 4. Then, readjudicate the appeal. If any of the benefits sought remains denied, issue a supplemental statement of the case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These matters must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board is appealable to the Court. 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).