Citation Nr: 1737167	
Decision Date: 09/06/17    Archive Date: 09/19/17

DOCKET NO.  13-02 769	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon


THE ISSUE

Entitlement to an initial disability rating in excess of 10 percent for chronic lumbar muscular strain.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J.A. Gelber, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1990 to February 1994.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon.  

In October 2016, the Veteran testified before the undersigned at a Board hearing in Portland, Oregon.  A transcript of that hearing has been associated with the virtual file and reviewed. 

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


REMAND

The Board finds that a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  Specifically, a remand is necessary to afford the Veteran a new VA examination.  

The Veteran was last afforded a VA examination to assess the severity of his service-connected lumbar spine disability in June 2013.  In October 2016, the Veteran testified that his lumbar spine disability has increased in severity since the June 2013 VA examination.  Accordingly, the Board finds that a new examination is warranted.  See 38 C.F.R. § 3.327 (2016); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).  


Accordingly, the case is REMANDED for the following actions:

1.  Schedule the Veteran for an examination with an appropriate VA examiner to assess the nature and severity of his lumbar spine disability.  The examiner should be provided and review the virtual file, including a copy of this Remand.  The examiner should address the following:  

a.  Test range of motion and consider pain on both passive and active motion, and in both weight-bearing and non-weight-bearing positions, if appropriate.  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.  

b.  The examiner should determine whether the lumbar spine disability is manifested by weakened movement, excess fatigability, incoordination, flare-ups, or pain.  The examiner should express the additional functional limitation in terms of the degree of additional limitation due to weakened movement, excess fatigability, incoordination, or pain, both during flare-ups and after repetitive use over time.

c.  The examiner should indicate the presence or absence of ankylosis of the thoracolumbar spine.  

If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training).  
2.  Thereafter, if any benefit sought on appeal remains denied, issue a supplemental statement of the case and return the case to the Board, if otherwise in order.

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).



_________________________________________________
ERIC S. LEBOFF
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 this appeal.  38 C.F.R. § 20.1100(b) (2016).