Citation Nr: 1802014 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 07-23 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to a rating higher than 20 percent for chronic low back strain. (The issues of entitlement to various equipment purchases/home modifications under the vocational rehabilitation independent living plan and entitlement to clothing allowance for the year 2014 are the subject of separate Board decisions with different docket numbers.) ATTORNEY FOR THE BOARD M. Mac, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to June 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board acknowledges that the Veteran has petitioned the United States Court of Appeals for Veterans Claims (Court), including in 2014, for a Writ of Mandamus ordering VA to adjudicate the issue of entitlement to a higher rating for chronic low back strain. Although the Veteran in July 2017 also stated that the Board failed to adjudicate his claim of entitlement to aid and attendance, which was certified in September 2007, the RO in a July 2012 rating decision indeed granted his claim of entitlement to special monthly compensation based on aid and attendance, and thus that issue is no longer in appellate status. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The Board acknowledges that the issue of entitlement to an earlier effective date for the grant of aid and attendance based on a clear and unmistakable error in a rating decision dated July 9, 2012 was perfected in October 2017, but not yet certified to the Board. As the Agency of Original Jurisdiction (AOJ) may be still taking action on this issue, the Board will not accept jurisdiction over it at this time, but it will be the subject of a subsequent Board decision, if otherwise in order. This matter also is brought to the AOJ's attention for the appropriate actions. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND During the appeal period the Veteran has not been afforded a VA spine examination. In May 2016 the Veteran requested that he be afforded a VA spine examination to determine the current level of severity of his low back disability. A review of the record shows that the Veteran's last orthopedic examination was a private evaluation in September 2003. Consequently, the Board finds that a current examination is necessary. Green v. Derwinski, 1 Vet. App. 121 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); Caffrey v. Brown, 6 Vet. App. 377 (1994) (determining that the Board should have ordered a contemporaneous examination of the Veteran because a 23-month-old examination was too remote in time to support adequately the decision in an appeal for an increased rating). Lastly, it is unclear whether the notice requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met with regard to the issue of a higher rating for chronic low back strain. Thus, the Veteran should be sent a VCAA-compliant notice letter pertaining to this claim. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Send the Veteran a VCAA notice letter which informs him of what the evidence must show to establish entitlement to a higher rating for low back strain. 2. Schedule the Veteran for a VA examination of his spine to determine the current severity of the service-connected low back strain. The entire claims file must be made available to the examiner designated to examine the Veteran, and the report of the examination should include a discussion of the Veteran's documented medical history and assertions. Any necessary studies or tests should be conducted. Upon review of the record and interview and examination of the Veteran, the examiner is asked to do the following: Utilize the appropriate Disability Benefits Questionnaire in evaluating the service-connected low back strain. The examination report must include all findings necessary to rate the disability, including range of motion measurements for painful joints on both active and passive motion, in weight-bearing and non-weight bearing. 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. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. For all opinions rendered, the examiner must explain the rationale. If the examiner is unable to provide an opinion, he or she should explain why. 3. The AOJ must review the examination obtained above to ensure that the remand directives have been accomplished. If all questions posed are not sufficiently answered, the case should be returned to the examiner for completion of the inquiry. 4. Afterwards, readjudicate the issue of entitlement to a rating higher than 20 percent for chronic low back strain. If the benefit sought is not fully granted, the Veteran should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). _________________________________________________ CAROLINE B. FLEMING 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).