Citation Nr: 1802472 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 10-29 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to higher initial ratings for degenerative disc disease of the lumbar spine (low back disability) rated as 10 percent disabling from September 8, 2008, and 20 percent disabling from August 2, 2016. 2. Entitlement to an initial compensable rating for Wolff-Parkinson White syndrome. REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force (USAF) from August 1986 to July 1996. This case is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. During the pendency of this appeal, the Veteran failed to appear for this hearing before a Veterans' Law Judge and therefore his request for a hearing is deemed to be withdrawn. See 38 C.F.R. § 20.704(d) (2017). In June 2016, the Board remanded the appeal for additional development. In a November 2016 rating decision, the RO granted the Veteran's low back disability a 20 percent rating effective from August 2, 2016. In December 2017 the Veteran's representative filed with the Agency of Original Jurisdiction (AOJ) a request for a copy of the Veteran's claims file. To date, it is unclear what actions the AOJ has already undertaken to comply with this request. Therefore while the appeal is in remand the AOJ, if it has not already done so, should provide the Veteran's representative with the requested records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As to the claim for higher evaluations for a low back disability, the Board finds that none of the existing VA examinations included range of motion testing in both active and passive motion, weight-bearing, and non-weight-bearing situations as well as opinions as to the Veteran's range of motion during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). As such, the Board finds that another remand is necessary to provide the Veteran with a new VA examination to conduct the appropriate range of motion testing. See 38 U.S.C.A. § 5103A(d) (West 2014). As to the claim for a compensable rating for Wolff-Parkinson White syndrome, the Board finds that a remand for a new VA examination is required to take into account the evidence added to the claims file since the Veteran's last VA examination in October 2008. Accordingly, these issues are REMANDED to the AOJ for the following actions: 1. After obtaining authorizations from the Veteran, associate with the claims file any outstanding private treatment records. 2. Associate with the claims file all of the Veteran's post-October 2015 treatment records from the Beckley VA Medical Center. 3. Notify the Veteran and his representative that they can submit lay statements from the claimant and from other individuals who have first-hand knowledge of the problems caused by his low back disability, radiculopathy, and Wolff-Parkinson White syndrome to include all problems with employment. Provide them a reasonable time to submit this evidence. 4. Schedule the Veteran for appropriate VA examinations to determine the nature and severity of his low back disability from September 8, 2008. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. A. Range of Motion Studies: The examiner should identify all low back pathology found to be present since September 19, 2011. The examiner should conduct all indicated tests and studies, to include range of motion studies. Full range of motion testing must be performed where possible. The joints involved should be tested in 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 should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up and after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups and/or after repetitive use without resorting to speculation, the examiner should 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). B. Other Findings: The examiner should state whether the low back disability is productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration. The examiner should state the nature, extent and severity of the right lower extremity and left lower extremity radiculopathy. The examiner should also state whether the low back disability is productive of any bowel or bladder problems. 5. Schedule the Veteran for an appropriate VA examination to determine the nature and severity of his Wolff-Parkinson White syndrome from September 8, 2008. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. 6. Then readjudicate the appeal. If any benefit sought on appeal is not granted in full, furnish the Veteran a supplemental statement of the case (SSOC). The Veteran should be given an appropriate opportunity for response before returning the appeal 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board 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).