Citation Nr: 1805709 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 11-21 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to an evaluation in excess of 20 percent for residuals of low back pain. REPRESENTATION Appellant represented by: Michael E. Wildhaber, Attorney ATTORNEY FOR THE BOARD B. Rideout-Davidson, Counsel INTRODUCTION The Veteran had active duty service from June 1976 to February 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. In a September 2014 decision, the Board denied the Veteran's claim for an increased evaluation for residuals of low back pain. The Veteran then appealed the September 2014 decision to the United States Court of Appeals for Veterans Claims (Court), and in a December 2015 memorandum decision, the Court vacated the Board's September 2014 decision and remanded the claim for further development. A letter was sent to the Veteran and his representative in April 2016 in which they were given 90 days from the date of the letter or until the date of the Board's new decision, whichever came first, to submit additional argument or evidence in support of his appeal prior to the Board's readjudication. The Veteran and his representative then submitted additional evidence in support of the appeal. The Board subsequently remanded the claim for further development in December 2016. That development has been completed, and the case has since been returned to the Board for appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board finds that a remand is necessary in this case in order to obtain an adequate VA examination. In its December 2016 remand, the Board requested that the AOJ afford the Veteran a VA examination in order to comply with the Court's December 2015 memorandum decision and to evaluate the medical evidence of record within the context of differing medical opinions. Although the Veteran was provided a VA examination in February 2017 with an addendum opinion in May 2017, the examiner did not address all of the findings as directed by the Court in its December 2015 memorandum decision and in the Board's December 2016 remand. As such, a remand is required to ensure compliance. Accordingly, the case is REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his back. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. Any outstanding VA medical records should also be obtained and associated with the claims file. 2. After the above development has been completed, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected residuals of low back pain. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the disability. In addressing these rating criteria, the examiner should only consider the symptoms and findings attributable to his service-connected back disability. If the examiner is unable to distinguish between the symptoms associated with the service-connected residuals of low back pain and any symptoms associated with a nonservice-connected disorder (including any disorder resulting from a post-service injury, such as lumbar disc herniation and degenerative disease), he or she should state so in the report and provide an explanation. The examiner should provide the range of motion in degrees, and test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-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 so in the report. The examiner should also indicate whether there is any form of ankylosis and state the total duration of incapacitating episodes during the past 12 months. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability, including any additional loss of motion, due to those factors. In addition, the examiner should identify any and all associated neurologic abnormalities and state whether the Veteran has radiculopathy affecting either lower extremity. The examiner should consider the Veteran's complete medical history, as directed by the Court in its December 2015 decision. He or she should specifically consider the following evidence: (a) all prior VA examinations of record, including the examinations performed in April 2010, February 2013, February 2014, and February 2017; (b) the August 2016 private medical opinion submitted by Dr. D.M.; (c) the November 1987 report that the Veteran's back condition was worsening; (d) the November 1996 and January 1997 reports indicating two distinct lumbar conditions; (e) x-rays performed in May 1980, June 1981, and November 1996; and (f) the November 1996 MRI report. The examiner should also consider the medical articles submitted by the Veteran, to include those submitted in September 2016, as well as his lay testimony. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of the additional evidence. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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 (West 2012). _________________________________________________ J.W. ZISSIMOS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).