Citation Nr: 1805644 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 09-37 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for a service-connected lumbar strain (low back disability). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. G. Perkins, Associate Counsel INTRODUCTION The Veteran had active service from August 1979 to August 1982. This matter comes before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta Georgia. This matter was previously before the Board in April 2014 and remanded for further development. In a March 2016 decision, the Board denied the claim. The Veteran subsequently appealed the March 2016 Board decision to the United States Court of Appeals for Veterans Claims (hereinafter, the Court). In a September 2017 order, the Court granted a joint motion for remand (JMR), which vacated the Board's decision and remanded the Veteran's appeal to the Board for action consistent with the terms of the JMR. Additionally, the parties to the JMR identified objective evidence in the June 2014 VA examination opinion that corroborated the Veteran's complaints of decreased neurological sensation to his right lower extremity. The JMR directed the Board to address these findings. As such, the issue of radiculopathy for the right lower extremity, due to the Veteran's service-connected lumbar strain is added as an issue as shown in the above title page in conformance with the JMR. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The parties to the JMR agreed that the Board erred in its decision by relying on the June 2014 VA examination. The parties to the JMR found the VA examination inadequate because the examiner did not provide an opinion as to the functional loss the Veteran experienced during flare-ups of his lumbar strain disability. Sharp v. Shulkin, 29 Vet. App. 26 (2017). On remand the Veteran should be scheduled for another VA examination in order to provide the examiner an opportunity to obtain all "procurable medical evidence" before declining to offer an opinion as to flare-ups of the Veteran's condition. Id. At 36. Additionally, the parties to the JMR directed the Board to address the Veteran's contentions of complaints of tingling, numbness, and a lack of feeling in his lower extremities that was corroborated with the objective evidence of decreased sensation in his right lower extremity in the June 2014 VA medical opinion. However, the June 2014 examiner did not find any radiculopathy despite noting decreased neurological sensation in the right lower extremity. On remand, during the VA examination, the examiner needs to resolve any decreased neurological findings of the lower extremities by identifying the cause and whether it is causally related to the Veteran's service connected lumbar strain. Accordingly, the case is REMANDED for the following action: 1. Obtain the names and addresses of all medical care providers who treated the Veteran for his back and related complaints since September 2014. After securing the necessary release, take all appropriate action to obtain these records. 2. After completion of the foregoing, schedule the Veteran for an appropriate VA examination to assess the severity of the service-connected lumbar strain. Copies of all pertinent medical records should be made available to the examiner for review. All necessary diagnostic testing should be performed. The examiner must describe all impairment of the lumbar spine disability, including neurological. The appropriate Disability Benefits Questionnaire (DBQs) should be filled out for this purpose, if possible. (a) The examinations must address active and passive motion, weight-bearing and nonweight-bearing information, as required by 38 C.F.R. § 4.59. 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. (b) The examiner should specifically ask the Veteran to describe the factors that precipitate a flare-up and the frequency, duration, and severity of any flare-ups. The examiner should use that information to comment on the functional limitations caused by pain and any other associated symptoms. Such comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. A detailed rationale is requested for all opinions provided. (c) The examiner should specifically indicate whether the Veteran has radiculopathy in either lower extremity. The examiner should specifically reference the June 2014 findings of decreased sensation. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made, to include whether there are additional tests or information that might be sufficient to estimate such additional functional loss during flares. 3. Thereafter, readjudicate the issues on appeal. If any benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration. The Veteran 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). _________________________________________________ M. E. LARKIN 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).