Citation Nr: 1741191 Decision Date: 09/21/17 Archive Date: 10/02/17 DOCKET NO. 13-13 645 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to a disability rating in excess of 10 percent prior to July 1, 2014 and in excess of 20 percent thereafter for lumbar strain with degenerative disc disease. REPRESENTATION Veteran represented by: AMVETS ATTORNEY FOR THE BOARD L. Bush, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from April 2007 to January 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which granted service connection for a low back disability and initially evaluated it at 10 percent disabling. During the pendency of the appeal, the RO increased the Veteran's disability rating to 20 percent, effective July 1, 2014. However, on a claim for an original or increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). As a 20 percent evaluation does not represent the maximum benefit allowable for a low back disability, this issue remains in appellate status. Additionally, the RO denied the Veteran's claim for entitlement to service connection for posttraumatic stress disorder (PTSD) in an April 2017 rating decision. The Veteran timely filed a Notice of Disagreement (NOD), thereby placing the issue in appellate status. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). As the electronic Veterans Appeals Control and Locator System (VACOLS), has acknowledged receipt of the NOD and indicates that additional action is pending, this situation is distinguishable from Manlincon v. West, 12 Vet. App. 238 (1999), where a NOD had not been recognized. As VACOLS reflects that the NOD has been recognized and that additional action on the NOD is pending at the RO, Manlincon is not applicable in this case. The Veteran had requested a hearing before a traveling member of the Board in his May 2013 VA Form 9, but withdrew his request in December 2015. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran is seeking an increased rating for his low back disability. Because the most recent evaluation of the Veteran's low back disability is more than three years old and the Veteran credibly alleges that his low back disability has worsened, remand for an additional examination is required. See Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (finding that the Board should have ordered a contemporaneous examination of Veteran because a 23-month old exam was too remote in time to adequately support the decision in an appeal for an increased rating). The Board further notes that any new examination must obtain more detailed range of motion findings than those recorded in the Veteran's most recent July 2014 VA examination. See Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that during VA orthopedic examinations, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing positions, and, if possible, with the range of the opposite undamaged joint). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA and private treatment records. 2. Schedule the Veteran for a VA examination to determine the current severity of his lumbar strain with degenerative disc disease, to include specific findings regarding pain on range of motion testing per Correia. The Veteran's claims file must be provided to the VA examiner for review. After reviewing the Veteran's claims file and eliciting the history of his low back symptoms, the examiner should conduct a relevant clinical examination, to include range of motion testing for pain on both active and passive motion, and in both weight-bearing and nonweight-bearing positions. If this cannot be accomplished, it should be explained why. 3. Finally, readjudicate the Veteran's low back disability increased rating claim. If the full benefit sought remains denied, issue a supplemental statement of the case and return the case 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). _________________________________________________ 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) (2016).