Citation Nr: 0007340 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 94-02 702A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an increased rating for the service-connected lumbosacral strain, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M. E. Larkin, Associate Counsel INTRODUCTION The veteran served on active duty from January 1968 to January 1970. This matter was initially before the Board of Veterans' Appeals (Board) on appeal from a December 1993 rating action of the Buffalo, New York Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the veteran's claim for a rating in excess of 10 percent for the service-connected lumbosacral strain. In January 1994, the veteran testified at a personal hearing at the RO. A transcript of that hearing is associated with the record. In an October 1994 rating action, the RO effectuated a Hearing Officer's decision to increase the rating to the current level of 20 percent, effective from January 4, 1993. The Board remanded the case in August 1997 for additional development. REMAND The veteran contends that his service-connected back disability is more severe than the current rating indicates. The United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (hereinafter, the Court) has held that, when a veteran claims a service-connected disability has increased in severity, the claim is well grounded. Proscelle v. Derwinski, 2 Vet. App. 629 (1992). Inasmuch as the veteran has submitted a well- grounded claim, VA is obligated to assist him in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). When the Board initially reviewed the veteran's appeal, it was noted that VA examinations conducted to date had not included consideration of all factors identified in 38 C.F.R. §§ 4.40, 4.45 (1999). See DeLuca v. Brown, 8 Vet. App. 202 (1995). It was contemplated that an examination conducted on remand would provide sufficient detail to rate the veteran's service-connected back disability. Specifically, in light of the veteran's complaints of pain, the examination ordered on remand was to include medical determinations on whether the low back exhibited pain with use, weakened movement, excess fatigability, incoordination, or any other functionally disabling symptom. Additionally, these determinations were to be expressed in terms of additional range-of-motion loss beyond that already demonstrated clinically. The veteran was afforded VA examinations in July 1998 and May 1999; however, those examinations did not address all elements required by the Board. Although the examiner noted that the veteran experienced flare-ups approximately once a week and reported pain on motion, there was no quantifiable explanation given as to how these symptoms affected the veteran, such as in terms of additional range-of-motion loss beyond that clinically found. DeLuca requires that this be done. It was also noted in the prior remand that the veteran had complained of neurological manifestations related to his service-connected back disorder. It was requested that the examination conducted on remand include an opinion as to the medical probably that any neurological impairment was related to, or a manifestation of, the service-connected lumbosacral strain. No such opinion was provided. Subsequent to the most recent VA examination, the veteran underwent diagnostic testing which revealed evidence of bilateral lumbosacral radiculopathy; however, the VA examination did not address those findings. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268 (1998). Where the remand orders of the Board are not complied with, the Board itself errs in failing to insure compliance. As such, the Board finds that the case is not ready for appellate review and must be remanded for further development. In view of the foregoing, and to ensure that 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 RO should take appropriate steps to contact the veteran in order to obtain the names and addresses of all medical care providers who treated him for back disability since April 1997. After securing the necessary release, the RO should attempt to obtain copies of all records from the identified treatment sources. 2. The veteran should be afforded an appropriate VA examination to determine the current severity of his service- connected lumbosacral strain and to determine the likely etiology of any demonstrated neurological impairment. The claims folder and a copy of this remand should be made available to the examiner prior to the examination so that the pertinent clinical records can be reviewed in detail. In addition, the examiner should elicit a complete history from the veteran. Any indicated special studies necessary to address the extent of functional impairment due to the veteran's service-connected lumbosacral strain should be conducted, and all pertinent clinical findings should be reported in detail. Findings that take into account all functional impairments identified in 38 C.F.R. §§ 4.40, 4.45 should be included. That is, any functional impairment identified should be expressed in terms of additional range of motion loss beyond that clinically demonstrated. See DeLuca, supra. Based on the examination and review of the record, the examiner is also requested to express an opinion as to the medical probability that any currently demonstrated neurological impairment is related to, or a manifestation of, the service-connected lumbosacral strain. Complete rationale for any opinion expressed must be provided. 3. Following completion of the foregoing, the RO must review the claims folder and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examination does not include all test reports, special studies or opinions requested, appropriate corrective action is to be taken. Thereafter, the RO should again review the veteran's claim. If any benefit sought on appeal remains denied, the veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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. BARBARA B. COPELAND 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).