Citation Nr: 0005895 Decision Date: 03/03/00 Archive Date: 03/14/00 DOCKET NO. 95-10 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an increased rating for a low back disability, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. R. Steyn, Associate Counsel INTRODUCTION The veteran had active military service from December 1974 to December 1977 and from October 1986 to December 1992. This matter arises from an August 1994 rating decision by which the RO denied a claim for an increased evaluation from 10 percent disabling for a low back condition. By a rating decision of December 1995, the RO continued to deny the veteran's claim for an increased evaluation from 10 percent disabling for a low back condition. The veteran had a hearing scheduled for January 1995, but his representative indicated that the veteran wished to cancel the hearing. The veteran's claim was initially before the Board in February 1997, at which time it was remanded for additional development. REMAND The law requires full compliance with all orders in this remand. Stegall v. West, 11 Vet. App. 268 (1998). Although the instructions in this remand should be carried out in a logical chronological sequence, no instruction in this remand may be given a lower order of priority in terms of the necessity of carrying out the instruction completely. The veteran's claim for an increased rating for a low back disability from 10 percent disabling must be remanded for another VA examination. This case must be remanded because the examination report from September 1998 does not answer with sufficient clarity the questions posed in the February 1997 remand. The United States Court of Appeals for Veterans Claims (Court) has recently underscored the role of agencies of original jurisdiction in carrying out the instructions in Board Remands. As noted by the Court, the duties of the agencies of original jurisdiction in this regard are mandatory, and, furthermore, the Board of Veterans' Appeals is obligated to insure compliance with the instructions in Remands. Stegall v. West, 11 Vet. App. 268 (1998). In February 1997, the Board remanded the case at hand in order that the veteran could be afforded a VA examination in accordance with DeLuca v. Brown, 8 Vet. App. 202 (1995). Specifically, the examiner was asked to make specific findings regarding range of motion and the level of pain on motion, as well as for a determination as to whether any limitation of motion could best be described as slight, moderate, or severe. The examiner from the veteran's September 1998 VA examination provided the range of motion findings, but did not describe whether such range of motion could best be described as slight, moderate, or severe, and also did not describe the amount of pain on motion. Therefore, under Stegall v. West, the veteran's claim for an increased rating for residuals of a low back injury must be remanded for another VA examination. The VA examination must consider the factors discussed in DeLuca v. Brown (such as additional range of motion loss due to pain, weakened movement, excess fatigability, or incoordination, including during flare-ups) and relate how they affect the veteran's lumbar spine. Accordingly, the case is REMANDED for the following action: 1. The RO and any physician to whom this case is assigned for an examination and/or a statement of medical opinion must read the entire remand, to include the explanatory paragraphs above the numbered instructions. 2. The RO should take appropriate steps to obtain and associate with the claims file any copies of VA and private medical records regarding the veteran's low back that have not already been associated with the claims folder. 3. The appellant should be afforded a VA orthopedic examination to determine the nature and severity of his service- connected residuals of a low back injury. The examiner should provide diagnoses of all disorders of the veteran's lumbar spine. Such tests as the examining physician deems appropriate should be performed. These tests should include a complete test of the range of motion of the veteran's lumbar spine. In describing the range of motion of the spine, the examiner should answer the following questions: a. What is the veteran's range of motion of the lumbar spine for forward flexion, backward extension, lateral flexion, and lateral rotation? b. What are the standards for normal ranges of motion for the lumbar spine for the different range of motion tests? c. How do the range of motion findings of the lumbar spine relate to those standards for the different range of motion tests in terms of whether any limitation of motion is severe, moderate, or slight? d. Does the veteran have ankylosis of the lumbar spine, and, if so, is such ankylosis favorable or unfavorable? e. Is there muscle spasm on extreme forward bending? f. Is there loss of lateral spine motion, unilateral, in standing position? g. Is there any listing of the spine? h. Is there a positive Goldthwaite's sign? i. Is there marked limitation of forward bending in the standing position? j. Is there loss of lateral motion with osteoarthritic changes or narrowing of joint spaces? k. Is there any abnormal mobility on forced motion? The examiner should also be asked to determine whether there are other symptoms that affect the range of motion and function of the lumbar spine. The examiner should be asked to answer the following questions: l. Does the veteran's lumbar spine exhibit weakened movement, excess fatigability, incoordination, or pain on use attributable to the service connected disability (if feasible, the examiner should note the degree of additional range of motion loss due to these symptoms, or more specifically, should note the degree of movement at which any of such symptoms begin)? m. Does pain significantly limit functional ability during flare-ups or when the lumbar spine is used repeatedly over a period of time (this determination should also, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups)? If it is not feasible to answer any of the above listed questions, this should be so stated. The claims folder and a copy of this remand must be made available to the examining physician in conjunction with the examination so that he/she may review pertinent aspects of the appellant's medical history. 4. After the development requested above has been completed, the RO should review the veteran's claims folder and ensure that all the foregoing development has been conducted and completed in full. If any development is incomplete, appropriate corrective action should be taken. 5. The RO should readjudicate the appellant's claim of entitlement to an increased rating for a low back disability from 10 percent disabling with particular consideration of the provisions of 38 C.F.R. §§ 4.40, 4.45. In the event that the claim is not resolved to the satisfaction of the appellant, he should be provided a supplemental statement of the case which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the veteran and his representative have been given the applicable time to submit additional argument, the case should be returned to the Board for further review. No action is required of the veteran until she receives further notice. The Board does not intimate any factual or legal conclusion as to any final outcome warranted in the appeal. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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 Appeals for Veterans Claims 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. 1999) (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