Citation Nr: 1808956	
Decision Date: 02/13/18    Archive Date: 02/23/18

DOCKET NO.  06-12 830	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1.  Entitlement to an increased rating for thoracolumbar spine degenerative arthritis, degenerative disc disease, and spinal stenosis (low back disability) rated 20 percent disabling.  

2.  Entitlement to an increased rating for radiculopathy of the right lower extremity, rated 20 percent disabling.  

3.  Entitlement to an increased rating for radiculopathy of the left lower extremity, rated 10 percent disabling.  

4.  Entitlement to a total disability evaluation based on individual unemployability due to service connected disabilities (TDIU).  


REPRESENTATION

Appellant represented by:	Mark Lippman, Attorney


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

T. Griffin, Counsel


INTRODUCTION

The Veteran had active service from July 1968 to April 1971.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2006 decision of the Jackson, Mississippi, Regional Office.  

In October 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) and a transcript of the proceeding is of record.

In a November 2015 decision, the Board denied the Veteran's claims low back and TDIU claims and the Veteran appealed the decision to the U.S. Court of Appeals for Veterans' Claims (Court).  In a May 2017 Order, the Court granted the parties Joint Motion for Remand (JMR) vacating the Board's November 2015 adjudication of the aforementioned claims and remanded the appeal for appellate review consistent with the terms of the JMR.    

The issue of whether the September 22, 1983, RO decision, denying service connection for a low back disability, should be revised based on clear and unmistakable error (CUE) has been raised by the record in a May 2, 2013, statement, but 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) (2016). 

The appeal is REMANDED to the AOJ.  VA will notify the appellant if further action is required.


REMAND

The Board finds that there presently is insufficient medical evidence of record to comply with the May 2017 Court Order.  Neither the September 2014 VA examination findings nor the December 2017private examination findings meet the specification of Correia v. McDonald, 28 Vet. App. 158 (2016).  Additionally, neither examination report sufficiently addresses Social Security Administration records, tending to suggest that the Veteran may have been rendered unemployable due to non-service connected disabilities.  Thus, the Board must remand the respective claims to obtain adequate examinations and opinions.  See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also 38 C.F.R. § 3.159(c)(4) (2017).

The record suggests the Veteran receives regular VA low back treatment but relevant records generated since October 2017 have not been associated with the claims folder.  Additionally, aside from private treatment records submitted by the Veteran, the claims folder does not document sufficient attempts to obtain relevant, reasonably identified private treatment records generated since the most recent May 2015 Supplemental Statement of the Case.  38 U.S.C.A. § 5103A (West 2016); 38 C.F.R. § 3.159(c) (2017).  On remand, attempts to obtain these records must be undertaken. 

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran to identify all sources of private low back treatment, hospitalization or evaluation, since May 2015 to the present.  Then, undertake all necessary efforts to obtain any identified private treatment records.  Obtain all outstanding VA low back treatment or hospitalization records, dated October 2017 to the present.  Any negative response(s) must be in writing and associated with the claims folder.  All efforts to obtain these records should be documented. 

2.  After receipt of all additional records, schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected low back disability.

The claims file should be made available to the examiner for review in connection with the examination.

The examiner should provide findings as to the range of motion of the thoracic spine.  If ankylosis is present, please so note.  Additionally, the examiner must include range of motion testing in the following areas:

* Active motion; 
* Passive motion; 
* Weight-bearing; and 
* Nonweight-bearing.

The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination.  In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the low back is used repeatedly over a period of time.  Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.

The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain.

IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED.  If there is no pain and/or no limitation of function, such facts must be noted in the report.

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.

The examiner must comment on whether there is any intervertebral disc syndrome and if so, whether there are any incapacitating episodes (doctor-prescribed bedrest) and the duration of such.

The examiner should also determine whether there are any adverse neurological abnormalities that are the result of the Veteran's disability.  The examiner should identify any nerve(s) affected and determine if that symptomatology is best characterized as "slight," "moderate," "moderately severe," or "severe" incomplete paralysis or complete paralysis. 

Thereafter, the examiner should state the impact of service-connected disability(ies) on the Veteran's ability to obtain and maintain any gainful employment (consistent with his education and occupational experience).

The provided examination report must reflect consideration of both the medical and lay evidence of record, (e.g., Social Security Administration medical records, the December 2017 private medical examination, the Veteran's statements, etc.) and set forth a complete rationale for all findings and conclusions.  

All tests deemed necessary by the examiner must be performed. 

3.  After completing the above and ensuring the VA examinations are adequate, complete any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs.

4.  Then, the Veteran's claims must be readjudicated, including considering whether extraschedular consideration is warranted, based on the entirety of the evidence of record.  If a claim remains denied, the Veteran should be issued a Supplemental Statement of the Case, and the appeal returned for appellate review.  An appropriate period of time should be allowed for response. 

The Veteran has the right to submit additional evidence and argument on the 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.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
M. H. HAWLEY
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).