Citation Nr: 1637480 Decision Date: 09/23/16 Archive Date: 09/30/16 DOCKET NO. 08-04 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for a lower extremity neurological disability, to include as secondary to service-connected lumbar strain with degenerative disc disease. 2. Entitlement to a disability rating in excess of 20 percent for lumbar strain with degenerative disc disease on an extraschedular basis only. 3. Entitlement to a total disability evaluation based on individual unemployability as due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: K. Waldron, Esq. ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Marine Corps from December 19854 to July 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The appeal as to a schedular rating was remanded in January 2012, and the TDIU claim was remanded in January 2014. The claims for service connection and for a higher rating for a low back disability on an extraschedular basis were denied by the Board in January 2014. The Veteran appealed these determinations to the U.S. Court of Appeals for Veterans Claims (Court) and in a March 2015 memorandum decision, the Court vacated the Board's decision and remanded the claim for actions consistent with its decision. This remand serves to effectuate the Court's order. The issue of entitlement to a disability rating for a back disability, on a schedular basis only (the extraschedular consideration is part of this appeal and hence cannot form the basis of a new claim), has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND As noted in the introductory section, the Board's decision with respect to the issues of entitlement to service connection for lower extremity neuropathy and for entitlement to a higher disability evaluation for low back strain on an extraschedular basis has been vacated. The Court has directed that VA attempt to locate all VA records dating from July 1988 to the present. Such efforts must be made before any adjudication of these issues can occur. Other development is directed below. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA records from July 1988 to the present and associate them with the claims file. Should no records be found after exhaustive search (that is, records which are not already part of the claims file), so annotate the record. 2. Schedule the Veteran for a comprehensive VA general medical examination to determine the functional impact of service-connected disabilities, to include as to if low back disability, in concert with other service-connected disabilities, is productive of disablement outside of range of motion limitations with pain. Specifically, the following is asked to be noted: *The examiner is to consider overall functional impairment restrictions associated with the service-connected low back strain. *In this respect, he/she is to determine as to if the low back strain, either acting alone or in combination with service-connected neck disability, burn scars on the chest, or fracture residuals of the left fourth metatarsal, is productive of disability other than limitation of motion with pain. If so, the extent of such impairment is to be specifically documented. *The examiner is to determine as to if the Veteran's total service-connected disability picture, to include the low back strain, burn scar residuals, fracture residuals of the left fourth metatarsal, and neck disability, either acting alone or in combination with other factors, are severe enough in functional limitation so as to preclude participation in any type of employment activity. *Should additional disabilities be subject to service connection (e.g. the claimed lower extremity neuropathy associated with this claim) prior to examination, such disabilities should also be expressly considered. 3. After completion of the above: a. If the outstanding VA records and the examination indicate that the severity of the low back disability is greater than is contemplated by the SCHEDULAR rating, then readjudicate the issue of entitlement to an increased SCHEDULAR evaluation. b. If the outstanding VA records and the examination indicate that the severity of the low back disability is greater than limitation of motion with pain (or other factors considered in the schedular rating), or in other words, should the disability picture after examination and the securing of records be demonstrated to be unusual and outside of the norm (e.g. there is evidence of marked interference with employment, frequent hospitalization, etc.), the claim is to be referred to the Director of VA's Compensation Service for consideration of an EXTRASCHEDULAR. If the claim is not referred, an explanation as to why is to be included in the record. 4. Following the above-directed development, re-adjudicate the Veteran's claims. Should the adjudication remain less than fully favorable, issue an appropriate supplemental statement of the case and forward the claims to the Board. 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). _________________________________________________ Vito A. Clementi 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).