Citation Nr: 1806237 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 10-07 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent for degenerative disc disease with herniation of L5-S1 and sciatica. 2. Entitlement to an initial rating in excess of 10 percent for S-1 radiculopathy, left lower extremity (LLE). 3. Entitlement to service connection for depression, to include as secondary to service-connected low back disability. REPRESENTATION Appellant represented by: Monte C. Phillips, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Carole Kammel, Counsel INTRODUCTION The Veteran had active service from May 2001 to December 2004. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2009 and May 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. By these rating actions, the RO continued a 10 percent disability rating assigned to the service-connected low back disability and granted service connection for left lower extremity radiculopathy, with an initial 10 percent disability rating effective April 10, 2010, respectively. The Veteran appealed the 10 percent ratings assigned to each of the above-cited service-connected disabilities to the Board. In July 2012, the Veteran testified at a video conference hearing before a now-retired Veterans Law Judge. A copy of the hearing transcript has been associated with the electronic record. In a July 2017 letter to the Veteran, the Board advised him that the VLJ that had conducted the July 2012 hearing was no longer employed at the Board. The Board indicated that the Veteran had an opportunity to request another optional Board hearing. The Board advised him that he had 30 days to respond to the Board's letter and that if it did not hear from him regarding his hearing request, that it would proceed with his appeal. As the Veteran did not respond to the Board's hearing request within the allotted 30-day period, it will proceed with its appellate review of the claims. In an August 2017 written argument to VA, the Veteran's attorney appears to have raised the issue of entitlement to a temporary total evaluation for treatment of the service-connected low back disability requiring convalescence under paragraph 30 (see Veteran's attorney's August 2017 written argument to VA at page 2). This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The Veteran and his attorney are hereby advised that a claim for benefits submitted after March 2015, such as here, must be submitted on the application form prescribed by the Secretary. 38 C.F.R. §§ 3.1 (p), 3.155, 3.160 (2017). In addition, by a November 2016 rating action, the RO denied service connection for depression, to include as secondary to the service-connected low back disability. The Veteran submitted a Notice of Disagreement (NOD) in August 2017. The RO has not issued a Statement of the Case that addresses the issue of service connection for depression, to include as secondary to the service-connected low back disability. Therefore, the Board must remand the above-cited service connection claim, rather than merely referring it. A Statement of the Case (SOC) must be issued and the Veteran given an opportunity to perfect the appeal of this claim to the Board. See Manlincon v. West, 12 Vet. App. 238 (1999). As the Board's Veterans Appeals Co-Locator System (VACOLS) reflects that the Veteran's NOD has not been recognized and that additional action on the NOD is not pending at the RO, Manlincon is applicable in this case. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND With regard to the Veteran's claim for an increased rating for his lumbar spine disability, the Board notes that in the recent case of Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 4.59 (2017) requires that all VA examinations related to a joint disability must include testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with the range of motion measurements of the opposite undamaged joint. In the instant appeal, VA examined the Veteran's spine in January 2009, April 2010 and, most recently, in April 2016. There is, however, no indication in these VA examination reports that the examiners conducted range of motion testing with and without weight-bearing or with passive as well as active motion. The Board also notes that the April 2016 VA examiner indicated that he was unable to estimate the additional functional limitation of the lumbar spine caused by flare-ups because a flare-up was not present at the time of the examination. (See August 2016 VA Spine Disability Benefits Questionnaire (DBQ) at pages 6-7). The United States Court of Appeals for Veterans Claims (Court) has found that the mere lack of opportunity to observe a flare-up is an insufficient basis for not estimating its functional effects. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Under these circumstances, the Board finds that a remand is warranted in order to afford the Veteran a contemporaneous VA examination addressing the severity of his lumbar spine disability. The examiner will be instructed to conduct the examination in such a way as to comply with the Court's holdings in Correia and Sharp. In addition, remand of the claim for an initial disability rating in excess of 10 percent for the service-connected S-1 radiculopathy, LLE, is required as the requested spine examination will include neurological findings. Thus, the radiculopathy rating is intertwined with the spine rating. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991 Finally, and as noted in the Introduction, by a November 2016 rating action, the RO denied service connection for depression, to include as secondary to the service-connected low back disability. The Veteran submitted a NOD in August 2017. The RO has not issued a Statement of the Case that addresses the issue of service connection for depression, to include as secondary to the service-connected low back disability. Therefore, the Board must remand the above-cited service connection claim, rather than merely referring it. An SOC must be issued and the Veteran given an opportunity to perfect the appeal of this claim to the Board. See Manlincon, supra. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for VA examination to determine the current severity of his service-connected lumbar spine disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. The appropriate DBQ must be utilized. Range of motion studies must include testing for pain in active motion and passive motion of the lumbar spine. The examiner should also discuss pain in weight-bearing and non-weight-bearing ranges of motion. If such are not applicable or possible to test, then the examiner should state such along with an explanation. The examiner should further discuss additional functional limitation of the lumbar spine with repeated movement over time and upon flare-ups. Any such additional limitation of motion should be expressed in additional degrees of lost motion. The examiner must attempt to provide an estimate, even in the absence of an opportunity to observe the flare-up. The estimate may be based on the Veteran's reports of limitation during such flares. The examiner should also discuss how the lumbar spine disability might impair employment. A thorough neurologic examination of the Veteran's lumbar spine must also be performed, specifically addressing his S-1 radiculopathy, left lower extremity, as well as any other neurological disorders found to be present. Again, the appropriate Disability Benefits Questionnaires must be utilized. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to speculation, he or she must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information needed. 2. Notify the Veteran that it is his responsibility to report for the examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of his claims. 38 C.F.R. §§ 3.158, 3.655. In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 3. Issue a statement of the case for the issue of entitlement to service connection for depression, to include as secondary to service-connected low back disability. Only if the Veteran perfects an appeal should the claim be certified to the Board. 4. Ensure compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 5. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the increased and initial rating claims must be readjudicated. If any claim remains denied, a supplemental statement of the case must be provided to the Veteran and his attorney. After the Veteran and his attorney have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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). _________________________________________________ CAROLINE B. FLEMING 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).