Citation Nr: 1802757 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 17-30 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial evaluation in excess of 10 percent from May 9, 2005, for degenerative joint disease of the lumbar spine/DISH (diffuse idiopathic skeletal hyperostosis) syndrome, and in excess of 20 percent thereafter. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD H. Fisher, Associate Counsel INTRODUCTION The Veteran had honorable active duty service with the United States Army from December 1958 to November 1960. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia which implemented an October 2012 Board decision granting service connection for a low back disability, characterized as degenerative joint disease of the lumbar spine/DISH syndrome (a lumbar spine disability). The RO assigned a 10 percent initial evaluation effective May 9, 2005, and a 20 percent evaluation effective March 29, 2012. The Veteran timely appealed these evaluations to the Board. The Board remanded this issue in February 2017 for the issuance of a Supplemental Statement of the Case (SSOC). The SSOC was issued in October 2017. The Board notes that the issue of entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) was also on remand in February 2017. However, in December 2017, the Board remanded the issue of entitlement to TDIU for additional evidentiary development by the RO. As the RO is presently adjudicating that issue, it is not currently before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. (CONTINUED ON NEXT PAGE) REMAND Unfortunately, remand is again necessary to properly adjudicate the issue of entitlement to increased evaluations for the Veteran's lumbar spine disability. Medical evidence of record is conflicted with respect to the severity of his lumbar spine disability since May 2005. VA Medical Center (VAMC) treatment records indicated range of motion limited by 30 percent in November 2007. In August 2008, the Veteran's standing posture was noted to be within normal limits. In April 2009, the Veteran's forward flexion was limited to 50 degrees by pain. However, in March 2012, a VA examination report demonstrated forward flexion to 75 degrees with no evidence of pain. In November 2013, VAMC records indicate that lumbar flexion was limited by 50 percent. The next month, however, flexion was only to 40 degrees. In February 2013, forward flexion was to 75 degrees. A June 2016 VA examination reported a stable lumbar spine disability with forward flexion to 60 degrees. Given the confusion presented by the varying ranges of motion, a supplemental medical opinion is necessary to determine what in fact the limitation of motion has been since May 2005. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any relevant, outstanding VA treatment records that are not already associated with the claims file. Make as many requests as are necessary to obtain relevant records, and only end efforts to do so if the records sought do not exist or further efforts to obtain those records would be futile. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Once the aforementioned development is complete, obtain an addendum medical opinion regarding the Veteran's lumbar spine disability. If deemed necessary, a new examination may be ordered. The examiner must review the entire claims file, including a copy of this remand. The examiner must consider the Veteran's lay reports regarding observable symptoms and functional limitations. The examiner must address the varying range of motion measurements of record since May 2005. The examiner should opine as to the following: (a) Provide a detailed assessment of the impairment caused by the Veteran's lumbar spine disability since May 2005 in terms of range of motion, including additional limitation due to pain or other functional impairment; (b) Indicate whether any measurements or assessments in that period of time appear to represent a worsening of his condition, an improvement, or otherwise; (c) Assess the functional limitations of his lumbar spine disability since May 2005. The examiner must provide all findings, along with a complete rationale for his or her opinion in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. The examiner should also identify what additional information or evidence (if any) may allow for a more definitive opinion. 3. Following completion of the foregoing, the AOJ should review the record and readjudicate the claim on appeal. If it remains denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, 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). _________________________________________________ B. MULLINS 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) (2017).