Citation Nr: 1805727 Decision Date: 01/29/18 Archive Date: 02/07/18 DOCKET NO. 10-27 535A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to a rating in excess of 20 percent for service-connected lumbar degenerative disc disease with spondylosis from August 12, 2015. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from February 1966 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) from a November 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) that continued a 10 percent rating for the service-connected lumbar spine disability. The Veteran perfected an appeal as to the rating assigned to his lumbar spine disability and this appeal ensued. In a March 2015 rating decision (issued in April 2015), the RO increased the Veteran's disability rating to 20 percent, effective February 7, 2015. During the pendency of the appeal, the Veteran filed a claim seeking a temporary total rating based on the need for convalescence following surgery on his lumbar spine on August 12, 2015. The RO denied the Veteran's claim in a December 2016 rating decision, after which he submitted a timely NOD in February 2017. The Veteran's increased rating claim for the lumbar spine disability was subsequently transferred to the Board for adjudication. In May 2017, the Board remanded the Veteran's claim for a temporary total rating for the issuance of a statement of the case (SOC), pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The Board also denied the Veteran's claims for a rating in excess of 10 percent for the service-connected lumbar spine disability prior to February 7, 2015, and a rating in excess of 20 percent from February 7, 2015 to August 11, 2015. However, the Board determined that the issue of entitlement to a higher rating from August 12, 2015 was inextricably intertwined with the claim for a temporary total rating and, thus, remanded both claims. In June 2017, the RO issued an SOC addressing the temporary total rating claim but the Veteran did not perfect an appeal as to that claim by submitting a timely substantive appeal. Therefore, the issue of entitlement to a temporary total rating based on the need for convalescence following surgery on the service-connected lumbar spine disability on August 12, 2015 will not be considered any further. The issue of entitlement to a rating in excess of 20 percent for the service-connected lumbar spine disability from August 12, 2015 has been returned to the Board for consideration. However, for reasons explained below, the remaining issue on appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required on his part. REMAND In its May 2017 remand, the Board directed that, after providing the Veteran with an SOC regarding the temporary total rating claim, the AOJ should readjudicate the issue of entitlement to a rating in excess of 20 percent for the service-connected lumbar spine disability from August 12, 2015 and provide the Veteran and his representative with a supplemental SOC (SSOC) if the claim remained denied. As noted, the AOJ issued an SOC regarding the temporary total rating claim in June 2017 and, after waiting the requisite time period to receive a substantive appeal from the Veteran, issued an SSOC in November 2017. However, instead of addressing the issue of entitlement to a rating in excess of 20 percent for the service-connected lumbar spine disability from August 12, 2015, the November 2017 SSOC addressed whether the 20 percent rating assigned on February 7, 2015 was proper, without addressing any evidence dated after September 2013. Because the AOJ did not issue an SSOC that addressed the propriety of the rating assigned to the lumbar spine disability from August 12, 2015, the directives of the May 2017 remand were not substantially complied with, thereby necessitating another remand. See Stegall, 11 Vet. App. at 271. Additionally, the Veteran was last afforded a pertinent VA examination in May 2016; however, that examination did not include testing for pain on passive motion or in non-weight-bearing and, thus, did not conform with the requirements for an adequate examination as delineated in Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016) and 38 C.F.R. § 4.59 (2017). Therefore, the Board finds the May 2016 VA examination (which is the only examination of record for the relevant time period) is inadequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As such, a new VA examination is required to assess the current severity and any functional effects of the Veteran's lumbar spine disability. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and severity of his service-connected lumbar spine disability. Any indicated evaluations, studies, and tests should be conducted and evaluations should be performed. 2. Readjudicate the claim. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ R. FEINBERG 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).