Citation Nr: 1634964 Decision Date: 09/07/16 Archive Date: 09/20/16 DOCKET NO. 10-42 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating in excess of 10 percent for degenerative changes of the lumbar spine. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran served on active duty from April 1986 to June 1998, and from April 2004 to July 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office in Waco, Texas (RO). The appeal was remanded in March 2014 and has been returned to the Board for review. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately the Board finds that another remand is necessary in this case. Pursuant to the Board's March 2014 Remand, VA afforded the Veteran a medical examination of his thoracolumbar spine, in April 2014. The examiner completed a standardized Disability Benefits Questionnaire (DBQ) specific to the anatomical area. Upon review of the DBQ, the Board concludes that the examination does not adequately address the requirements dictated by 38 C.F.R. § 4.59. Specifically, the joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing. Therefore, the Board must obtain a new medical examination that is compliant with the precepts of § 4.59 and the holdings in Mitchell v. Shinseki, 25 Vet. App. 32 (2011) and Deluca v. Brown, 8 Vet. App. 202 (1995). At the VA examination conducted in April 2014, the Veteran reported that he had received injections for his back disability on at least three occasions since his prior VA examination. The RO should assist the Veteran in obtaining all records of treatment and associate them with the e-file. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all VA and non-VA medical care providers that have treated him for his lumbar spine disability. Make arrangements to obtain all records that he adequately identifies. 2. Make arrangements to obtain the Veteran's VA treatment records, dated since March 2014. 3. Then, schedule an orthopedic/neurological examination by a VA physician to assess the severity of the Veteran's service-connected lumbar spine disability. The e-folders as well as a copy of this Remand must be made available to the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the e-file has been reviewed. All necessary diagnostic testing and evaluation should be performed, and all clinical findings reported in detail, with respect to the cervical spine disability. If possible, the appropriate DBQ should be completed. In addition, the examiner must test the joints for pain in both active and passive motion, in weight-bearing and nonweight-bearing positions and must state in the examination report whether this was accomplished and the findings from the testing. Additionally, the examiner must address whether the Veteran has additional functional loss of the thoracolumbar spine due to pain, fatigue, or weakness during flare-ups and/or during repeated use over time. The examiner must identify the extent of any such additional functional loss. To the extent that the Veteran may no longer experience flare-ups of one or more of these joints, the examiner must interview the Veteran as to his history of flare-ups and document the results. 4. Finally, readjudicate the claim on appeal. If the claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran 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 2014). _________________________________________________ BRADLEY W. HENNINGS 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).