Citation Nr: 1708024 Decision Date: 03/16/17 Archive Date: 04/03/17 DOCKET NO. 12-10 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an initial rating in excess of 20 percent for lumbar spine degenerative arthritis with intervertebral disc syndrome. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active service from February 1959 to April 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan, which granted service connection for degenerative joint and disc disease involving the lumbosacral spine, status post laminectomy surgery, and assigned an initial 20 percent disability rating effective November 30, 2007. It was most recently before the Board in May 2016, when it was remanded in compliance with an April 2016 Joint Motion for Remand (JMR) by the United States Court of Appeals for Veterans Claims (Court). In November 2014, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that additional development is necessary before a decision may be rendered regarding the issue on appeal. The Veteran underwent a new VA back examination in January 2017 pursuant to a Board remand. At the time of the examination, the Veteran stated he no longer had flare-ups, but rather he now had constant pain. The Board specifically asked for an opinion regarding application of 38 C.F.R. § 4.40 and 4.45, but the examiner stated there was no functional loss and that he was unable to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time. Therefore, the Board finds that the January 2017 examination is inadequate for rating purposes because it is incomplete. See 38 C.F.R. § 3.310; see also Stegall v. West, 11 Vet. App. 268 (1998) (regarding legal necessity of compliance with previous Board directives). Further, the January 2017 VA examination's findings of lack of flare-ups, functional loss, decreased lower extremity senses, lower extremity radiculopathy, and intervertebral disc syndrome are inconsistent with several prior examinations without due explanation. For these reasons, a new VA examination should be provided on remand. Accordingly, the case is REMANDED for the following action: 1. The AOJ should secure for association with the record updated (to the present) records of any/all VA or private treatment the Veteran has received for the low back disability on appeal, with any needed assistance from the Veteran; this specifically includes treatment records from the VA Medical Center in Detroit from September 2014 to the present, from Dr. B.P. from November 2014 to the present, and from Clarkston Medical Group from March 2011 to the present. 2. After completing directive (1), the AOJ should arrange for a VA back evaluation by a VA medical professional to ascertain the current nature and severity of his service-connected low back disability. All indicated studies should be performed if deemed necessary by the examiner for the evaluation of the Veteran under the pertinent rating criteria. The examiner should identify all symptoms and impairment associated with the Veteran's low back disability, noting their frequency and severity. The examiner should also address whether there are flare-ups, and if so, discuss any additional functional loss during flare-ups. See 38 C.F.R. § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The examiner should test the range of motion in active motion and passive motion, weight-bearing, and non-weight-bearing. The examiner should identify whether there is pain during motion and, if so, at what degree pain begins. 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. Examination results should be clearly reported. 3. The AOJ should then review the obtained VA examination report to ensure that the opinions contained therein are responsive to the questions posed. 4. The AOJ should then review the record and readjudicate the claim on appeal for a higher rating for a low back disability. If the issue remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. 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). _________________________________________________ Nathaniel J. Doan 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).