Citation Nr: 1606952	
Decision Date: 02/24/16    Archive Date: 03/01/16

DOCKET NO.  14-22 841	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama




THE ISSUE

Entitlement to an increased rating for cervical spondylosis with degenerative disc disease and intervertebral disc disease, status post anterior intervertebral disc fusion C3-6, currently rated as 40 percent disabling.




ATTORNEY FOR THE BOARD

J. Connolly, Counsel





INTRODUCTION

The Veteran served on active duty from April 1978 to March 1999.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2012 decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA).  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

The Veteran was admitted for cervical spine surgery on January 11, 2011.  She underwent an anterior cervical discectomy with osteophytectomy; anterior interbody fusion structural allograft; anterior plate fixation; and morselized allograft.  A subsequent VA examination of the cervical spine dated in July 2011 shows that the Veteran's cervical spine was fixed in the flexed position.  With regard to her intervertebral disc syndrome, the examiner indicated that the Veteran had experienced incapacitating episodes 25 times, 1-2 days at a time.  The examiner did not state how close together the episodes occurred.  When she was next examined in 2014, the examiner indicated that the Veteran did not have intervertebral disc syndrome so there was no opinion regarding incapacitating episodes.  The Veteran is service-connected for intervertebral disc disease.  The Veteran recently submitted an August 2015 magnetic resonance imaging (MRI) which has not been reviewed by an examiner or the AOJ.  

The Board notes that in order for the Veteran to be assigned a higher rating, the evidence must show that she has experienced incapacitating episodes having a total duration of at least six weeks during the past 12 months.  The Board finds that a medical evaluation should be conducted to make this assessment.

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be afforded a VA examination for the purpose of determining the nature, and extent of the Veteran's service-connected cervical spondylosis with degenerative disc disease and intervertebral disc disease, status post anterior intervertebral disc fusion C3-6.  The record must be made available to and reviewed by the examiner prior and pursuant to conduction and completion of the examination.  All indicated tests and studies should be performed.  

The examination should be performed in accordance with the Disability Benefits Questionnaire (DBQ) for spine (neck) disorders.  The DBQ should be filled out completely as relevant.  In particular, the examiner should provide an opinion regarding whether the Veteran has had incapacitating episodes as defined by regulation for any 12 month period during the relevant appeal period (2010 to present), and, if so, the number of episodes and the duration of the episodes.  

Any opinions expressed by the examiner must be accompanied by a complete rationale.

2.  Review the medical opinion obtained above to ensure that the remand directives have been accomplished.  If all questions posed are not answered or sufficiently answered, the case should be returned to the examiner for completion of the inquiry.  

3.  Readjudicate the claim on appeal in light of all of the evidence of record.  If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto.

The Veteran 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).



_________________________________________________
S. L. Kennedy
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) (2015).