Citation Nr: 1806216 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 09-10 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to a rating in excess of 10 percent for a lumbar spine disability. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran, Veteran's Spouse ATTORNEY FOR THE BOARD G. Morales, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from August 1968 to August 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in September 2017. A transcript is of record. In April 2015, March 2017, and July 2017, the Board remanded the Veteran's claim for a Board hearing. It has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand). Specifically, the Veteran testified at a Board hearing before the undersigned VLJ in September 2017. In August 2011, the Board denied the Veteran's claim for an increased rating. The Veteran appealed this decision to the U.S. Court of Appeals for Veterans Claims (Court), and in November 2012, the matter was vacated and remanded to the Board in a Memorandum Decision. 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 to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. Specifically, a remand is necessary to afford the Veteran a new VA examination. The Veteran last underwent a VA examination to assess the severity of his service-connected lumbar spine disability in July 2009. At the September 2017 Board hearing, the Veteran testified that his lumbar spine disability has increased in severity since his last VA examination. See 09/06/2017, Hearing Transcript, at p. 6, 8. Specifically, he testified that he has radiating pain and numbness down his legs, in addition to five to six incapacitating episodes per year. Accordingly, the Board finds that a new examination is warranted, as there is an indication that the record does not adequately reveal the current state of the claimed disability. Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Veteran of the missing records, the efforts taken and any further efforts that will be made by VA to obtain such evidence, and allow him an opportunity to provide the missing records. 2. Then, schedule the Veteran for an examination with an appropriate VA examiner to assess the nature and severity of his lumbar spine disability. The examiner should measure and record all subjective complaints and objective findings, review the claims file, and address the following: a) Test the lower back, addressing pain on both passive and active motion and on both weight-bearing and 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. To the extent possible, the examiner should provide an estimate of the range of passive motion of the spine at the time of the prior July 2009 VA examination. b) The examiner should determine whether the lumbar spine disability is manifested by weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should express the additional functional limitation in terms of the degree of additional limitation due to weakened movement, excess fatigability, incoordination, or pain, both during flare-ups and after repetitive use over time. The Veteran has reported flare-ups. c) Also, measure and record any neurological abnormalities associated with the lower spine disability, including but not limited to any lower extremity pain and numbness. Summarize the level of impairment due to any symptoms in the lower extremities as mild, moderate, moderately severe, severe incomplete paralysis, or total paralysis. If any requested opinion cannot be provided without resort to speculation, court cases require the examiner to explain why the opinion cannot be offered, and state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge. 3. Thereafter, if any benefit sought on appeal remains denied, issue a supplemental statement of the case and return the case to the Board, if otherwise in order. The appellant 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). _________________________________________________ Eric S. Leboff 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).