Citation Nr: 9823882 Decision Date: 08/06/98 Archive Date: 07/27/01 DOCKET NO. 96-42 672 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for lumbar spinal stenosis, L4-5, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas D. Jones, Associate Counsel INTRODUCTION The veteran served on active duty from May 1979 to May 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1995 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claim for an increased rating for his lumbar spinal stenosis at L4-5. He filed a timely notice of disagreement to this determination, initiating this appeal. REMAND Since the veteran's increased rating claim was submitted to the Board, the veteran's representative has added the July 1998 statement of Craig Bash, M.D., regarding the veteran's service connected lumbar spinal stenosis; no waiver of consideration by the agency of original jurisdiction was filed. As this constitutes new and pertinent evidence, it must be first presented to the agency of original jurisdiction for review pursuant to 38 C.F.R. § 20.1304. Only then may it be considered by the Board. Second, the Board notes that the veteran's service connected disability is described as lumbar spinal stenosis at L4-5; however, his representative argues that the veteran has lumbar spinal stenosis at other aspects of the lumbosacral spine, and service connection for the entire lumbar spine is warranted. The outcome of this informal claim for an additional grant of service connection could change the outcome of the increased rating claim currently before the Board. This informal for an additional grant of service connection is inextricably intertwined with the increased rating claim currently before the Board. For this reason, further development of this claim is warranted. Harris v. Derwinski, 1 Vet.App. 180 (1991); Holland v. Brown, 6 Vet.App. 157 (1994). Finally, when the veteran was initially granted service connection for a lower back disability in a February 1991, he filed a timely notice of disagreement regarding the assigned disability rating of 10 percent. He also filed a timely substantive appeal, perfecting his appeal. While the veteran was granted an increased rating, to 20 percent, based on a January 1992 hearing officer's decision, this does not represent the maximum possible benefit available for the veteran's disability. The Court of Veterans Appeals has held that where a veteran has filed a notice of disagreement as to the assignment of a disability evaluation, a subsequent rating decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the veteran's appeal for increased rating will be considered to have been open since that time. Therefore, in light of the above, this case is REMANDED for the following further development: 1. The RO should ensure that all pertinent records of treatment are associated with the claims folder. 2. The veteran should be afforded a VA orthopedic examination to determine the current disability associated with is lumbar spinal stenosis of L4-5. The claims folder should be made available to the examiner for review before the examination. All necessary tests, including an MRI and complete range of motion testing, should be performed. The examiner should respond separately and specifically to each of the following items: a. Indicate whether there is any pain, weakened movement, excess fatigability, or incoordination on movement. b. State whether there is likely to be additional range of motion loss of the service-connected lower back due to any of the following: (1) pain on use, including flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The above determinations should, if feasible, be expressed in terms of the degree of additional range of motion loss due to pain on repeated use or during flare-ups under § 4.40, and weakened movement, excess fatigability, or incoordination under § 4.45. c. State as precisely as possible the diagnoses of all disorders of the lumbar spine the veteran currently has. d. With reference to item "c," above, for each diagnosis that is separate from lumbar stenosis, L4-5, review the entire medical record and state a medical opinion as to the time of onset of the disorder. e. With reference to item "c," above, for each diagnosis that is separate from lumbar stenosis, L4-5, review the entire medical record and state a medical opinion as to whether it is at least as likely as not that the disorder is the result of the veteran's lumbar stenosis, L4-5. f. With reference to item "c," above, for each diagnosis that is separate from lumbar stenosis, L4-5, review the entire medical record and state a medical opinion as to whether disability resulting from the disorder increased as a result of the veteran's lumbar stenosis, L4-5. 3. After completion of all requested development, the RO should review the veteran's claims, including all new evidence added to the file. If the claim for an additional grant of service connection is denied, the RO should assure that the veteran is notified of his right to appeal. The RO should also assure that the veteran is afforded an opportunity to complete all steps necessary to a appeal the claim to the Board in accordance with the provisions of 38 U.S.C.A. § 7105, including a timely notice of disagreement, a statement of the case, and a timely substantive appeal. 4. If all claims in appellate status are not resolved to the satisfaction of the veteran, he and his representative should be furnished with a supplemental statement of the case. They should then be afforded a reasonable opportunity to respond. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. 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. 1998) (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. _____________________________ G. H. SHUFELT 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) (1997).