Citation Nr: 1642165 Decision Date: 11/02/16 Archive Date: 11/18/16 DOCKET NO. 10-33 613 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether the reduction in rating for thoracolumbar arthritis status-post surgery to 10 percent, effective March 1, 2010, was proper. 2. Whether the reduction in rating for chronic ligamentous strain, cervical spine, effective March 1, 2010, was proper. 3. Entitlement to an increased evaluation for thoracolumbar arthritis status-post surgery rated 10 percent from March 1, 2010 to April 8, 2013 (followed by temporary total rating for surgical convalescence); resuming at 10 percent from June 1, 2013 to July 11, 2013; 40 percent from July 12, 2013 to August 26, 2014 (again followed by temporary total rating); and resuming at 40 percent since November 1, 2014. 4. Entitlement to an increased evaluation for chronic ligamentous strain, cervical spine rated 10 percent from March 1, 2010 (followed by temporary total rating for surgical convalescence); resuming at 10 percent November 1, 2013, and at 20 percent July 12, 2013. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jason A. Lyons, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from December 1978 to July 2006. This case originally came before the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) from a December 2009 rating decision of the VA Regional Office (RO) in Roanoke, Virginia, which implemented the proposed determination to reduce rating for thoracolumbar spine disorder from 40 to 10 percent; and reduce rating for cervical spine disorder from 20 to 10 percent, both effective from March 1, 2010. Following the Veteran's timely Notice of Disagreement (NOD) therefrom, the RO issued a June 2010 Statement of the Case (SOC) on the reduction in rating matter though, technically listing the claims as for increase in rating. More recent May 2016 Supplemental Statement of the Case (SSOC), in fact, addresses the claims as being for increase in entirety (though is also averred to be cumulative of the June 2010 SOC which as stated did broach the reduction matter). The matters of increased rating and reduction in rating for the back and neck disabilities are distinguished upon the title page above. The Veteran was previously scheduled for a July 2016 hearing at the Board's Central Office in Washington, D.C., but cancelled it in advance of that proceeding. See 38 C.F.R. § 20.704(e) (2016). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Unfortunately, the appeal cannot be decided now. There is a procedural limitation in that Regional Office adjudicative determinations, particularly the May 2016 Supplemental Statement of the Case (SSOC) did not distinguish the reduction in rating from increase claims. Only matters of increase were set forth. Whereas the June 2010 SOC did address rating reduction, there also the literal statement of the issue was for increase. Given that specific provisions and types of evidence are applicable to restorations in rating, an updated Supplemental Statement of the Case would clarify the matter. See 38 C.F.R. § 19.31(b) (2016). The Veteran should also undergo VA Compensation and Pension re-examination in light of recent precedential case holding impact claims for rating of musculoskeletal disorders. See Correia v. McDonald, 28 Vet. App. 158 (2016) (per 38 C.F.R. 4.59, VA musculoskeletal examinations should include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing positions and if possible, with range of motion measurements of the opposite undamaged joint). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for VA examination to determine the severity of his service-connected thoracolumbar and cervical spine disabilities. The Veterans Benefits Management System (VBMS) and Virtual VA electronic claims folders must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and all findings should be set forth in detail. The VA examiner is requested to indicate all present symptoms and manifestations from the Veteran's service-connected back and neck disorders. The examiner should report complete range of motion findings for the thoracolumbar spine, and cervical spine. The examiner is requested to additionally note the following, per recent expanded findings needed: Range of motion measurement must be provided in active motion, passive motion, weight-bearing and nonweight-bearing positions (as appropriate). Additionally, the examiner must document all functional loss of the thoracolumbar spine and/or cervical spine, including due to pain on use, weakness, repetitive motion, flare-ups, fatigue, and incoordination. Any functional loss must be documented in terms of additional lost degrees of range of motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Further, identify and describe the frequency and severity of all incapacitating episodes of Intervertebral Disc Syndrome (IVDS) of the thoracolumbar spine and/or cervical spine (an "incapacitating episode" being defined as requiring physician-prescribed bedrest). The examiner should provide a complete rationale for all opinions provided. 2. Thereafter, readjudicate the claims on appeal in light all additional evidence received. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished with another Supplemental Statement of the Case (SSOC) that specifically designates as separate matters the Veteran's claims for restoration of his rating and the claims for an increased rating. (Please note, the continued consideration of the issue of increased rating for thoracolumbar spine disorder should directly address whether increase beyond the current 40 percent is warranted based on rating criteria for Intervertebral Disc Syndrome (IVDS).) The Veteran and his representative should then be afforded an opportunity to respond before the file is returned to the Board for further appellate consideration. The Veteran 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 claims 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). _________________________________________________ GAYLE E. STROMMEN 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) (2016).