Citation Nr: 1752399 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 12-02 413 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE What rating is warranted for lumbar spondylosis prior to July 12, 2009? REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Mary E. Rude, Counsel INTRODUCTION The Veteran served on active duty from November 1985 to November 1989, March 2003 to June 2003, and October 2005 to August 2006. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Veteran testified before the undersigned in September 2015. In April 2016, the Board, in pertinent part, denied entitlement to a rating in excess of 10 percent for lumbar spondylosis prior to July 12, 2009. Following a timely appeal the United States Court of Appeals for Veterans Claims (Court), in June 2017, vacated that part of the Board's decision. The Board notes that in April 2016, the Board remanded the issues of entitlement to service connection for a sleep disorder, urinary incontinence, erectile dysfunction, and fecal incontinence each secondary to lumbar spondylosis; and the questions of what rating is warranted for lumbar spondylosis since July 12, 2009, and what rating is warranted for left lower extremity radiculopathy associated with lumbar spondylosis since February 28, 2013. Those issues are still being developed by the Agency of Original Jurisdiction (AOJ) and will be addressed at a later date. The appeal is REMANDED to the AOJ VA will notify the appellant if further action is required. REMAND Pursuant to the June 2017 Court Memorandum Decision, this issue is remanded for further development. The Court found that the Board had improperly relied on a July 2009 VA examination, because this examination failed to adequately evaluate and discuss the Veteran's painful motion and functional loss due to pain. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet.App. 202, 206-07 (1995). The Court stated that the July 2009 examiner's assessments were "too vague to adequately portray the appellant's degree of functional loss and painful motion," and the issue was remanded so that the Board could consider obtaining a retrospective opinion. This issue is therefore remanded to the AOJ in order to obtain a retrospective medical opinion to consider whether the medical evidence of record indicates that the Veteran had painful motion or functional loss due to pain of such an extent, during the period prior to July 12, 2009, that a rating higher than 10 percent would have been warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain an addendum medical opinion from a qualified physician which provides a retrospective medical opinion regarding severity of the Veteran's lumbar spondylosis prior to July 12, 2009. The examiner must be provided access to all pertinent files in VBMS, and must specify in the report that all records have been reviewed. The examiner is to review the Veteran's complete medical records, including the July 2009 VA examination report. Please specifically discuss the July 2009 VA examiner's finding that the Veteran had a history of fatigue, decreased motion, stiff, weakness, daily pain, pain on motion, and pain following repetitive motion. Based on the evidence of record, for the period prior to July 12, 2009, attempt to estimate the extent of the Veteran's further limitation of motion in the lumbar spine: a) due to pain, weakened movement, excess fatigability, or incoordination; b) following repetitive motion; and c) during a flare up. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. 2. Then readjudicate the claim. If any benefit is not granted, send the Veteran and his representative a supplemental statement of the case and give them an opportunity to submit still additional evidence or argument in response before returning the file to the Board. The appellant 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. §§ 5109B, 7112 (2012). _________________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).