Citation Nr: 1736648	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  11-08 959A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

1.  Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the lumbar spine. 

2.  Entitlement to a compensable disability rating for radiculopathy, right lower extremity, associated with degenerative joint disease of the lumbar spine, prior to November 15, 2012, and an evaluation in excess of 10 percent beginning therefrom.  
 
3.  Entitlement to a compensable disability rating for radiculopathy, left lower extremity, associated with degenerative joint disease of the lumbar spine, prior to November 15, 2012, and an evaluation in excess of 10 percent beginning therefrom.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

C. Bosely, Counsel


INTRODUCTION

The Veteran served on active duty from August 1994 to November 1997. 

This matter originally came before the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision of the Atlanta, Georgia, Regional Office (RO) of the Department of Veterans Affairs (VA).

A March 2013 rating decision granted separate 10 percent ratings for left and right lower extremity lumbar radiculopathy effective November 15, 2012.  The Board takes jurisdiction of these ratings as they are part and parcel of the spine rating issue on appeal.  See 38 C.F.R. § 4.71(a), General Rating Formula for Disease and Injuries of the Spine, Note (1).

In April 2015, the Board remanded the issue on appeal to the RO to arrange for a Board hearing.  

Upon remand, a Travel Board hearing was scheduled for March 2017.  Prior to the hearing, in March 2017, the Veteran informed the RO that he could not make the hearing.  He requested to reschedule and was told that he would need to make this request in writing.  At present, he has not submitted such a written request.  In a February 2017 appellate brief, the Veteran's representative noted these events, including that the Veteran did not file a written request, and stated that the appeal is ready for disposition by the Board.  Thus, the Board finds that the request to testify at a hearing has been withdrawn.  See 38 C.F.R. § 20.704(d).  

The issue of entitlement to service connection for a psychiatric disorder, claimed as secondary to the Veteran' service-connected back disability, was referred to the RO by the Board in its April 2015 remand.  A different April 2011 statement mentioned blood pressure.  At present, neither of these issues has been adjudicated by the RO.  Therefore, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action.  38 C.F.R. § 19.9(b). 

The appeal is REMANDED to the RO.  VA will notify the Veteran if further action is required.


REMAND

The Board finds that a VA examination is needed to comply with the last sentence of 38 C.F.R. § 4.59 as it pertains to testing the joints for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint (or for an explanation as to why such testing cannot be conducted).  See Correia v. McDonald, 28 Vet. App. 158, 168 (2016).  The last VA examination, which was conducted in November 2012, does not contain the needed information.  

Accordingly, the case is REMANDED for the following actions:

1.  After completing any initial development needed, arrange for the Veteran to undergo a VA examination to evaluate the severity of his service-connected low back condition and radiculopathy.  

Accordingly, the examiner is asked to review all relevant records and conduct a clinical evaluation.  Based on this review, the examiner is asked to provide an assessment of the current nature of the Veteran's lumbar spine condition and radiculopathy.  

The joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 

he examiner is asked to describe the severity, frequency, and duration of all symptomatology associated with the condition.  All associated neurologic manifestations should also be evaluated, including the service-connected radiculopathy.  Please also describe all functional limitations present (a) after repetition over time and, separately, (b) during flare-ups.  The examiner is asked to identify, to the extent possible, the date on which any change in degree of impairment first occurred.

If for any reason 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. 

Please articulate the reasoning underpinning all medical findings.  That is, (1) identify what facts and information support those findings, and (2) explain how that evidence justifies the findings.

2.  After completing all actions set forth in paragraph 1, plus any further action needed as a consequence of the development completed in paragraph 1 above, readjudicate the remanded claims.  If any benefit sought on appeal remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC).  The Veteran and his representative should be afforded the appropriate time period to respond.  Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  

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 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.




_________________________________________________
RYAN T. KESSEL 
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252, only a decision of the Board 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).
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