Citation Nr: 9805419	
Decision Date: 02/24/98    Archive Date: 03/02/98

DOCKET NO.  91-12 322	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, 
Georgia


THE ISSUE

Entitlement to an increased rating for residuals of a low 
back injury with lumbar fusion and spondylolisthesis, 
currently rated as 40 percent disabling.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, 
Inc.


WITNESSES AT HEARINGS ON APPEAL

The veteran and his wife


ATTORNEY FOR THE BOARD

Keith W. Allen, Counsel



INTRODUCTION

The veteran served on active duty in the military from April 
1962 to January 1967.  Since discharged from the military, 
service connection has been established for chronic residuals 
of a low back injury with lumbar fusion and 
spondylolisthesis.  The Department of Veterans Affairs (VA) 
Regional Office (RO) in Atlanta, Georgia, denied the 
veteran’s request that the rating for his low back disability 
be increased to a level higher than 40 percent, and he 
appealed the RO’s decision to the Board of Veterans’ Appeals 
(Board).  The Board determined in February 1996 that a rating 
higher than 40 percent was not warranted, and he appealed to 
the United States Court of Veterans Appeals (Court).

In December 1996, the Office of General Counsel for VA, which 
represents the Secretary of VA in cases that are appealed to 
the Court, filed a motion requesting that the Court vacate 
the portion of the Board’s decision that denied an increased 
rating for the low back disability, and to remand this issue 
to the Board for further development of the evidence followed 
by readjudication of the claim.  The motion was not opposed 
by either the veteran or his representative.  The Court 
granted the motion in February 1997, and the case has since 
been returned to the Board for compliance with directives 
that were specified by the Court.

In December 1997, the veteran’s representative filed a motion 
requesting that the Board reconsider its “August 1997” 
decision (the veteran’s representative apparently intended to 
refer to an August 1987 decision by the Board).  
The Board sent the veteran’s representative, and the veteran, 
a letter in February 1998 indicating that the motion for 
reconsideration was denied, and that the Board would proceed 
with its review of the current appeal.


REMAND

In vacating the portion of the prior decision by the Board 
that denied an increased rating for the low back disability, 
the Court strongly hinted that it may be necessary to have 
the veteran undergo additional medical examination, testing, 
and evaluation to determine the extent that he is disabled 
and functionally impaired as a result of service-connected 
conditions.  The Board agrees that this is the most 
appropriate course in attempting to resolve the present 
appeal.  Caffrey v. Brown, 6 Vet. App. 377 (1994).  Records 
of any additional treatment that the veteran has received 
relevant to the case should also be obtained, as this 
evidence would provide helpful information as well in 
determining the present severity of the service-connected 
disability.  Gregory v. Brown, 8 Vet. App. 563 (1996); 
Bell v. Derwinski, 2 Vet. App. 611 (1992).

Additional issues raised by the veteran in the prior decision 
by the Board were remanded for any necessary development and 
initial consideration by the RO (that portion of the Board’s 
decision was not vacated or otherwise disturbed by the 
Court).  The claims that were remanded concerned whether the 
veteran is entitled to service connection for disabilities 
and conditions affecting the cervical and thoracic segments 
of his spine—including transverse myelopathy with spastic 
paraparesis (paralysis) in his lower extremities, in addition 
to disabilities affecting his shoulders, bowels and bladder.  
The disposition of those claims by the RO is not known.  
However, given that the Court requested further development 
of the issue of whether the veteran’s low back disability has 
increased in severity, and, in the process, intimated that 
this claim may be “inextricably intertwined” with the 
claims for service connection referred to above [see Harris 
v. Derwinski, 1 Vet. App. 180 (1991)], the Board’s decision 
to remand those claims previously is, in effect, subsumed by 
the development that is being requested in this remand.  
Consequently, once this case is returned to the RO, the 
adjudication of the claims, both for service connection and 
an increased rating, should be consolidated into one, 
collective appeal, so as to prevent piecemeal litigation of 
these issues.

For the reasons discussed above, the case is REMANDED to the 
RO for the following development and action:

1.  The veteran should be requested to 
submit a list (containing names, dates, 
and addresses) of any additional sources 
of treatment (VA, private or other) that 
he has received since 1996 that might 
have a bearing on his present appeal.  
This list is not meant to include records 
of treatment which have already been 
identified and/or obtained.  After 
securing any necessary release forms or 
authorization, the RO should directly 
contact the sources which are identified 
and obtain copies of the records in their 
possession, as required by 38 C.F.R. 
§ 3.159 (1996).



2.  The RO should thereafter arrange for 
the veteran to undergo VA orthopedic and 
neurological examinations to determine 
the nature, extent, and present severity 
of the service-connected low back 
disability at issue.  The claims folder 
or the pertinent medical records 
contained therein, including any 
additional evidence that is obtained as a 
result of the development requested 
above, must be reviewed by the doctors 
that are designated to examine the 
veteran.

It is specifically requested that the 
orthopedic and neurological examiners 
indicate the extent that the veteran 
may have functional impairment in his 
low back as a result of pain, limitation 
of motion, weakness, excess fatigability, 
or incoordination.  See DeLuca v. Brown, 
8 Vet. App. 202 (1995); 
38 C.F.R. §§ 4.40, 4.45(c)-(f), 4.59 
(1996).

The orthopedic and neurological examiners 
should expressly respond to the following 
questions:

(i) what are the manifestations of 
the disability affecting the 
veteran’s low back (lumbar spine)?  
Does he have limitation of motion?  
If so, to what extent, and what are 
the precipitating causes or factors 
(e.g., degenerative arthritis—
spondylosis, spondylolisthesis)?  
Does he have instability, weakness 
or decreased strength?  Does he 
become easily fatigued on account of 
the service-connected disability?

(ii) Are there any objective 
clinical manifestations that would 
support a conclusion that the 
veteran has functional impairment 
due to pain attributable to the 
service-connected disability?

(iii) Does the veteran have 
incoordination or an impaired 
ability to execute skilled movements 
smoothly as a result of the service-
connected disability?  If so, the 
examiners should comment on the 
severity of the incoordination and 
the effects that it has on the 
veteran’s ability to function in 
activities that are intrinsic to his    
day-to-day living experiences.

(iv) Is there evidence of 
radiculopathy attributable to the 
service-connected low back 
disability?

(v) To the extent that it is 
possible to make this determination, 
the examiners are requested 
to indicate the cause and/or 
etiological source of the 
transverse myelopathy (and 
associated spastic paraparesis of 
the lower extremities).  
Is this related to, or a residual 
of, the service-connected low back 
disability, or is this, instead, the 
result of conditions or defects that 
are not service-connected?

All tests and clinical studies that are 
necessary to make the determinations 
requested above should be completed, and 
the results reported in sufficient 
clarity and detail.  The basis for any 
conclusions made or opinions expressed 
should be clearly explained, citing, 
if necessary, to specific evidence in the 
record.  The examiners should record 
pertinent medical complaints, symptoms, 
and clinical findings.

3.  The RO should review the report of any 
examination requested to ensure that it 
sufficiently addresses the 
issues and concerns that were noted by the 
Court in its February 1997 order, which 
incorporated, by reference, the points that 
were noted by the Office of General Counsel 
in the unopposed motion that was filed with 
the Court in December 1996.  Any examination 
report that does not contain sufficient 
information should be returned as inadequate 
and any necessary additional information 
included.  38 C.F.R. § 4.2 (1996).

4.  The RO should then review the claim 
seeking a rating higher than 40 percent 
for the low back disability.  If not 
already completed, the RO should also 
adjudicate the additional claims by the 
veteran seeking service connection for 
disabilities affecting the cervical and 
thoracic segments of his spine, including 
transverse myelopathy, a bilateral 
shoulder disability, spastic paralysis of 
the lower extremities, and bowel and 
bladder dysfunction.  For further 
details, see the REMAND portion of the 
February 1996 decision by the Board, 
wherein the following evidence relevant 
to these claims was identified:  a 
February 1995 medical opinion obtained by 
the Board, a September 1995 statement 
from F. B. Kelly, M.D., and an October 
1995 statement from S. H. Gibbs, M.D.  
The veteran has since submitted a June 
1997 statement from Dr. Craig Bash, a 
neurologist.

Consideration should be accorded to 
whether the benefit-of-the-doubt 
doctrine, found at 38 U.S.C.A. § 5107(b) 
(West 1991) and 38 C.F.R. §§ 3.102, 4.3 
(1996), is for application to any or all 
of the claims at issue, or whether any of 
the other governing legal authority 
and precedent alluded to above allows for 
granting the benefits requested by the 
veteran.  The RO should also consider 
whether the veteran is entitled to an 
increased rate of compensation, on an 
extraschedular basis, under the 
provisions of 38 C.F.R. § 3.321(b)(1) 
(1996), and should be sure to provide 
adequate reasons and bases explaining the 
rationale underlying its decisions 
with respect to all claims raised by the 
veteran.

For any claim that continues to be denied (and for which an 
appeal has been perfected), the veteran and his 
representative should be issued a supplemental statement of 
the case and given an opportunity to respond.  The case 
should then be returned to the Board for further appellate 
consideration.  By this action, the Board intimates no 
opinion, either legal or factual, as to the ultimate 
disposition warranted.

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board of Veterans’ Appeals or by the United States Court of 
Veterans Appeals for additional development or other 
appropriate action must be handled in an expeditious manner.  
See The Veterans’ Benefits Improvements Act of 1994, Pub. L. 
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. 
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).  
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part 
IV, directs the ROs to provide expeditious handling of all 
cases that have been remanded by the Board and the Court.  
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.




		
	STEVEN L. KELLER
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the 
Board of Veterans' Appeals is appealable to the United States 
Court of Veterans Appeals.  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) 
(1996).
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