Citation Nr: 1802919 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 11-33 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to a disability rating in excess of 20 percent for degenerative disc disease with intervertebral disc displacement, L4-L5 (back disability), prior to December 3, 2014. REPRESENTATION Appellant represented by: Sean A. Kendall, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Y. Lee, Associate Counsel INTRODUCTION The Veteran had honorable active duty with the United States Army from October 1982 to February 1995. This case has a multifaceted history: This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which, in pertinent part, denied entitlement to a rating in excess of 20 percent for a back disability, prior to December 3, 2014. Jurisdiction of the matter is now with the RO in Salt Lake City, Utah. In a December 2014 rating decision, the RO, in pertinent part, increased the disability rating for the Veteran's back disability to 40 percent disabling, effective as of December 3, 2014. In October 2015, the Board issued a decision that, in pertinent part, denied entitlement to a rating in excess of 20 percent prior to December 3, 2014, and a rating in excess of 40 percent thereafter for the Veteran's back disability. In December 2015, the Veteran appealed the Board's decision of the increased rating claim for the back disability to the United States Court of Appeals for Veterans Claims (Court). In February 2017, the Veteran, through his representative, filed a motion which withdrew all pending claims, specifically including the claim for entitlement to a rating in excess of 40 percent for the back disability, from December 3, 2014. Therefore, the claim for entitlement to a rating in excess of 20 percent for the back disability, prior to December 3, 2014, is still before the Board. In March 2017, the Court issued a Memorandum Decision, which vacated the portion of the Board's decision that denied an increased disability rating for the Veteran's back disability, and remanded the matter for further consideration and instructions consistent with the Court's Memorandum Decision. The Board notes that the Veteran presented testimony before a Veterans Law Judge in February 2012. The Veterans Law Judge who conducted the hearing is no longer employed by the Board. The Veteran elected to appear again before a new Board hearing. In the February 2017 motion in which the Veteran withdrew all but one of his pending claims, the Veteran also requested a waiver of his pending hearing request, as well as a waiver of his right to an Informal Hearing Presentation, if he were to be granted a total disability rating based on individual employability due to service-connected disabilities (TDIU). In a March 2017 decision, subsequent to the Court's Memorandum Decision, the Board granted entitlement to TDIU, and pursuant to the February 2017 motion, dismissed all of the Veteran's pending claims, except for the claim for entitlement to a disability rating in excess of 20 percent for the back disability, prior to December 3, 2014. Thus, in addition to finding the Veteran's request for a hearing to be withdrawn, the Board also finds that the instant issue currently on appeal is the only remaining claim before the Board. The Board further notes that prior to his current representation, the Veteran was represented by Disabled American Veterans (DAV) and other private law firm. VA received a signed VA Form 21-22 in May 2016 and December 2017, changing representation to Attorney Sean A. Kendall or his associate. 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) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Pursuant to the Court's March 2017 Memorandum Decision, the Board must remand the increased rating claim for the back disability for an addendum VA medical opinion. Specifically, the Court indicated that clarification was needed for a March 2011 VA examination report, as it provided factually inconsistent findings. Specifically, the March 2011 VA examiner stated that the Veteran did exhibit quite a bit of pain and stiffening through range of motion testing; however, the examiner then stated that the Veteran moved much more smoothly during observed motion while getting out of the chair and sitting back down on the clinic table. It was noted that because the examiner did not provide an explanation for these incongruent findings, the Court determined that a remand was appropriate for an addendum opinion addressing the Veteran's back symptoms. In this regard, the explanation for this issue would appear to be manifest. In any event, the Board remands the Veteran's increased rating claim for the back disability, specifically for the period prior to December 3, 2014, for an addendum VA medical opinion clarifying the inconsistent findings pertaining to the Veteran's back symptoms located in the March 2011 VA examination report, as required. 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. Return the claims file to the March 2011 VA examiner and request that he re-review the claims file and respond to the below inquiries regarding the Veteran's back disability symptoms. If that examiner is unavailable, request that another appropriate examiner re-review the claims file and respond to the below inquiries. Based upon a review of the relevant evidence, history provided by the Veteran, the March 2011 VA examination report, and sound medical principles, the VA examiner should: (a) Clarify the factual findings from the March 2011 examination report pertaining to range of motion findings pertinent to the Veteran's back disability. The examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing, if possible. If the examiner is unable to do so, he or she should explain why. (b) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. In rendering the requested opinions, the examiner must consider all evidence of record, including all service treatment records, the Veteran's statements regarding in-service injury associated with the back, and all prior VA and private examinations. A full rationale must be provided for any opinion offered. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and indicate what additional evidence, if any, would allow for a more definitive opinion. 2. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran 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. §§ 5109B, 7112 (West 2014). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).