Citation Nr: 1805979 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-00 348 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an evaluation in excess of 20 percent for lumbosacral degenerative disc disease with herniated nucleus pulposus and history of ankylosing spondylitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Postek, Counsel INTRODUCTION The Veteran served on active duty from July 1963 to December 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In a November 2016 decision, the Board granted entitlement to service connection for Fuch's endothelial dystrophy and remanded the issues of entitlement to service connection for bilateral foot plantar fasciitis and to an increased evaluation for chronic bilateral iritis and the lumbosacral spine disability for further development. In a July 2017 decision, the Board ordered the agency of original jurisdiction (AOJ) to effectuate its November 2016 decision as to the Fuch's endothelial dystrophy claim, granted service connection for left and right foot plantar fasciitis, denied an increased evaluation for chronic bilateral iritis, and remanded the lumbosacral spine disability claim for further development. The AOJ effectuated the Board's decisions as to the granted claims in an October 2017 rating decision. The case has since been returned to the Board for appellate review. In addition, service connection for the lumbosacral spine disability was originally granted, to include sensory neuropathy of the right lower extremity that was rated with the degenerative disc disease. See 1993 rating decision. During the course of the current claim, the AOJ granted a separate compensable (10 percent) evaluation for right lower extremity radiculopathy (sciatic nerve) effective from April 17, 2009 (the date of the claim for increase), and subsequently increased the evaluation to 20 percent effective from September 26, 2017. See December 2016 and October 2017 rating decisions. The Veteran has not challenged any aspect of those decisions. This appeal was processed using the Veterans Benefits Management System (VBMS) and 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) (2012). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran was provided a VA examination in September 2017 following the Board's most recent prior remand. However, on review, the September 2017 VA examination does not include all of the necessary joint testing required under Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, another VA examination is required to ensure compliance with the prior remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). 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. The Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his service-connected lumbosacral degenerative disc disease with herniated nucleus pulposus and history of ankylosing spondylitis. Any 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. It should be noted that the Veteran is competent to attest to factual 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 Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In particular, the examiner should provide the range of motion of the thoracolumbar spine in degrees on 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 provide an explanation for that determination in the report. See September 2017 VA examination report (notes consideration of Correia, but does not provide all measurements for necessary joint testing). The examiner should also indicate whether there is any form of ankylosis. He or she should also state the total duration of any incapacitating episodes over the past 12 months and identify any neurological manifestations of the disability. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors (including any additional loss of motion). 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. Copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. After completing the above action and any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs, the case should be readjudicated by the AOJ on the basis of additional evidence. If the benefit sought is 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 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). _________________________________________________ J.W. ZISSIMOS 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).