Citation Nr: 0005954 Decision Date: 03/06/00 Archive Date: 03/14/00 DOCKET NO. 98-11 544 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to restoration of a 20 percent disability rating for the veteran's service-connected lumbosacral strain, evaluated as 10 percent disabling from December 1997. 2. Entitlement to restoration of a 10 percent disability rating for the veteran's service-connected surgical scar due to diskectomy, evaluated as 0 percent disabling from December 1997. ATTORNEY FOR THE BOARD Peter C. Lenart, Associate Counsel INTRODUCTION The veteran served on active duty from September 1986 to February 1993. His DD Form 214 indicates a prior additional period of service, but this has not been verified. In September 1997 the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey, reduced the veteran's disability rating for his service connected lumbosacral strain from 20 percent to 10 percent disabling. At the same time, the RO reduced the veteran's disability rating for his service connected postoperative surgical scar from 10 percent to 0 percent disabling. The veteran timely appealed both of these reductions to the Board of Veterans' Appeals (Board). REMAND The veteran has now come before the Board requesting the restoration of his previously assigned disability ratings. A review of the claims folder indicates that the veteran's disability ratings were reduced on the basis of a single rating examination in June 1997. After review of this examination report, the Board questions the adequacy of the record forming the basis for the rating reduction, particularly with regard to the analysis that must be conducted pursuant to 38 C.F.R. § 3.344 (1999) prior to rating reduction. It is also not apparent to the Board that these rating reduction criteria were given consideration by the RO prior to reduction. Additionally, in DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States Court of Appeals for Veteran's Claims (known as the United States Court of Veteran's appeals prior to March 1, 1999) (hereinafter, "the Court") held that 38 C.F.R. §§ 4.40, 4.45 (1999) were not subsumed into the diagnostic codes under which a veteran's disabilities are rated. Therefore, the Board has to consider the "functional loss" of a musculoskeletal disability under 38 C.F.R. § 4.40 (1999), separate from any consideration of the veteran's disability under the diagnostic codes. DeLuca, 8 Vet. App. 202, 206 (1995). Functional loss may occur as a result of weakness or pain on motion of the affected body part. 38 C.F.R. § 4.40 (1999). The factors involved in evaluating, and rating, disabilities of the joints include: weakness; fatigability; incoordination; restricted or excess movement of the joint; or pain on movement. 38 C.F.R. § 4.45 (1999). These factors do not specifically relate to muscle or nerve injuries independently of each other, but rather, refer to overall factors which must be considered when rating the veteran's joint injury. DeLuca, 8 Vet. App. 202, 206-07 (1995). In the appeal before the Board, the veteran's back disability may be classified under limitation of motion. Moreover, the veteran has indicated that he continued to experience back pain and numbness. Therefore, based on the instructions given by the Court in DeLuca, the Board concludes that further evaluation is necessary. To ensure that the VA has met its duty to assist the veteran in developing the facts pertinent to the claim, the case is REMANDED to the RO for the following development: 1. The veteran should be scheduled for a VA examination to evaluate the veteran's service-connected lumbosacral strain and diskectomy scar. Documentation of the veteran's notification of the scheduling of the examination should be associated with the claims file. The examination should include a diagnostic evaluation of the degree of limitation and functional impairment resulting from the veteran's lumbosacral strain and diskectomy scar. Any additional testing deemed appropriate should be conducted. The claims folder and a copy of this REMAND must be made available to and be reviewed by the examiner prior to the examination. The examiner's report should fully set forth all current complaints, pertinent clinical findings, and diagnoses, and should describe in detail the extent of any functional loss due to the veteran's back disability. Consideration should be given to any loss due to reduced or excessive excursion, or due to decreased strength, speed, or endurance, as well as any functional loss due to absence of necessary structures, deformity, adhesion, or defective innervation. In particular, the examiner should comment on any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the appellant is supported by adequate pathology and is evidenced by his visible behavior. The examiner's inquiry in this regard should not be limited to muscles or nerves, but should include all structures pertinent to movement of the affected joint. It is important for the examiner's report to include a description of the above factors that pertain to functional loss that develops on use. In addition, the examiner should be requested to provide an opinion regarding the degree of reduction in the veteran's ability to work, based solely on impairment due to the back disability. All disabling manifestations associated with the diskectomy scar should also be recorded in detail. All opinions expressed should be supported by reference to pertinent evidence. If the veteran fails to report for the VA examination, the RO should take into consideration the provisions of 38 C.F.R. §§ 3.158, 3.655. 2. Upon completion of the above development, and after undertaking and completing any additional development deemed warranted by the record, the RO should readjudicate the veteran's claim for restoration of the ratings previously in effect for his service-connected lumbosacral strain and diskectomy scar, in light of any additional evidence obtained. Such should include consideration of all the factors set forth in 38 C.F.R. §§ 4.40 and 4.45, as well as the provisions of 38 C.F.R. § 3.344. The RO must provide adequate reasons and bases for its decision, citing to all governing legal authority and precedent, and addressing all issues and concerns that were noted in this REMAND. 3. If the veteran's rating is not restored to his satisfaction, he and his representative must be furnished a supplemental statement of the case (SSOC) and given the opportunity to submit written or other argument in response thereto, before the case is returned to the Board for further appellate consideration. 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. D. C. Spickler Member, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), 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) (1999).