Citation Nr: 1803101	
Decision Date: 01/17/18    Archive Date: 01/29/18

DOCKET NO.  09-43 563	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Togus, Maine


THE ISSUE

Entitlement to an initial evaluation in excess of 10 percent for degenerative disc disease of the lumbar spine.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Jeanne Celtnieks, Associate Counsel



INTRODUCTION

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of a Department of Veteran's Affairs (VA) Regional Office (RO).  The Veteran appeared before the undersigned at a hearing in December 2015.  The matter was previously before the Board and was remanded in February 2016 and May 2017.   

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

The Board's May 2017 remand required that a lumbar spine VA examination be scheduled and it directed the examiner to conduct full range of motion testing where possible.  Full range of motion testing was described as testing for pain in active motion, passive motion, in weight-bearing, and in non-weight-bearing.  Although there is a note at the bottom of the June 2017 VA examination report that says the examiner conducted range of motion testing that was compliant with the remand instructions, the examination report does not reflect such compliance.  There is only one set of range of motion testing results in the examination report and there is no indication of whether testing for pain in non-weight bearing was done.  Stegall v. West, 11 Vet. App. 268 (1998). 

Accordingly, the case is REMANDED again for the following action:

1.  Schedule the Veteran for a VA examination to determine the current severity of his lumbar spine disability. 

Full range of motion testing must be performed where possible.  The examiner should test the range of motion of the lumbar spine for pain in active motion, passive motion, in weight-bearing, and in 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.  

2. If the benefits on appeal remain denied, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.

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 (2012).



_________________________________________________
M. HYLAND
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).