Citation Nr: 0001960	
Decision Date: 01/24/00    Archive Date: 02/02/00

DOCKET NO.  95-03 435	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, 
Arizona


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for 
degenerative joint and disc disease of the thoracic and 
lumbosacral spine.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The veteran


ATTORNEY FOR THE BOARD

K. Conner, Associate Counsel


INTRODUCTION

The veteran had active air service from February 1969 to 
February 1993.  This matter comes to the Board of Veterans' 
Appeals (Board) from a June 1994 rating decision of the 
Department of Veterans Affairs (VA) Phoenix Regional Office 
(RO) which, inter alia, denied service connection for 
bilateral hearing loss and granted service connection for 
degenerative joint disease of the lumbosacral and thoracic 
spine, assigning an initial 10 percent rating for the 
disability under Code 5003, effective March 1, 1993, the day 
following the date of his separation from service.  

In December 1994, the veteran perfected an appeal with the RO 
decision, including the initial 10 percent disability rating 
assigned.  By April 23, 1997 decision, the Board denied the 
veteran's claims of service connection for bilateral hearing 
loss and an evaluation in excess of 10 percent for 
degenerative joint disease of the lumbosacral and thoracic 
segments of the spine.  

The veteran duly appealed the Board's decision to the U.S. 
Court of Appeals for Veterans Claims (Court).  While the case 
was pending before the Court, the VA Office of General 
Counsel, on behalf of the Secretary, and the veteran's 
representative filed a Joint Motion to vacate and remand for 
readjudication of the Board's decision denying an evaluation 
in excess of 10 percent for degenerative joint disease of the 
lumbosacral and thoracic spine.  It was also indicated that 
the veteran did not wish to contest the Board's decision 
denying service connection for bilateral hearing loss.  The 
Court granted the motion by [citation redacted], 
and the case was returned to the Board for compliance with 
that order.  

In September 1998, the Board remanded the issue of 
entitlement to an initial evaluation in excess of 10 percent 
for degenerative joint disease of the lumbosacral and 
thoracic segments of the spine to the RO for additional 
development of the evidence and for due process 
considerations.  

While the matter was in remand status, by July 1999 
determination, the RO continued the initial 10 percent rating 
for degenerative joint disease of the thoracic and 
lumbosacral spine, pursuant to Diagnostic Code 5003.  In 
addition, the RO determined that, effective January 11, 1999, 
separate ratings were warranted as follows:  degenerative 
joint disease and disc disease of the lumbosacral spine, 10 
percent disabling; and degenerative joint and disc disease of 
the thoracic spine (zero percent).  The veteran's combined 
disability rating has remained 10 percent since the initial 
grant of service connection.  


REMAND

In its September 1998 remand, the Board requested that the RO 
obtain a VA orthopedic examination which included range of 
motion measurements in degrees of arc of both the thoracic 
and lumbosacral segments of spine, as well as normal ranges 
of lumbosacral and thoracic spine motion.  A review of the 
examination report indicates that such findings were not 
recorded.  Given the nature of the veteran's claim and the 
potentially applicable rating criteria, such findings are 
necessary for an equitable disposition of this case.  See 
Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (the Board 
is prohibited from reaching its own unsubstantiated medical 
conclusions).  Consequently, the Board finds that remand is 
again warranted.  Stegall v. West, 11 Vet. App. 268 (1998).

In addition, in the May 1998 Joint Motion for Remand, the 
Board was directed to consider whether Diagnostic Code 5285 
was for application in the instant case.  Under that code, 
residuals of a fracture of a vertebra are be rated in 
accordance with definite limited motion or muscle spasm, 
adding 10 percent for demonstrable deformity of vertebral 
body.  See 38 C.F.R. § 4.71a, Note following Code 5285.

In this case, it is unclear whether the veteran exhibits 
demonstrable deformity of a vertebral body due to fracture.  
The service medical records include November and December 
1974 chest X-ray reports showing incidental findings of a 
wedging deformity and loss of joint space in the area of T10 
and T11.  A November 1977 chest X-ray showed incidental 
findings of anterior lipping and wedging at T8-9 and T10-11, 
as well as dorsal kyphosis.  In addition, the post-service 
evidence includes a September 1993 X-ray examination report 
showing a mild anterior deformity at T12.  X-ray examination 
in December 1994 noted that thoracic kyphosis was preserved, 
that there was mild spondylolysis particularly at T11 and 
T12, and that there was severe disc space narrowing with 
anterior bony fusion at approximately the T10-T11 level, 
reported as possibly being developmental.  

Based on the foregoing evidence, additional development of 
the medical evidence is necessary.  The Board recognizes that 
on most recent VA examination in January 1999, the examiner 
indicated that physical examination revealed no observable or 
palpable deformities of the vertebral bodies of the thoracic 
or lumbosacral spine regions; yet, it appears that the 
examiner did not review the January 1999 X-ray reports prior 
to rendering his opinion, as requested.  Given the criteria 
set forth in Diagnostic Code 5285, an opinion as to whether 
X-ray examination shows any demonstrable deformity of 
vertebral body due to fracture appears to be necessary.  

The Board regrets any additional delay inherent in another 
remand of this case, but under the circumstances discussed 
above, it is believed that such action is necessary to ensure 
that VA has met its duty to assist in developing the facts 
pertinent to the claim and to ensure full compliance with due 
process requirements and the directions of the May 1998 Joint 
Motion for Remand.  Accordingly, the case is REMANDED for the 
following development:

1.  The veteran should be afforded 
another VA orthopedic examination to 
determine the nature and severity of his 
service-connected degenerative joint and 
disc disease of the lumbosacral and 
thoracic spine.  The claims folder must 
be made available to the examiner for 
review in conjunction with the 
examination.  All indicated tests should 
be conducted, including X-ray examination 
of the lumbosacral and thoracic spine, 
and the results reported in detail.  The 
examiner should review the results of any 
testing, including X-ray examination, 
prior to completion of the report.  He or 
she is requested to provide an opinion as 
to whether there is any demonstrable 
deformity of a vertebral body of the 
lumbosacral or thoracic spine.  If so, he 
or she should render an opinion as to 
whether it is as least as likely as not 
that any such deformity is due to 
fracture of a vertebra or to some other 
cause, such as a developmental 
abnormality.  The examiner should also be 
requested to record all pertinent medical 
complaints, symptoms, and clinical 
findings, specifically to include range 
of motion in degrees of arc of both the 
thoracic and lumbosacral spine (providing 
an explanation of the normal range of 
lumbosacral and thoracic spine motion).  
In addition, the examiner should be asked 
to provide an opinion as to the extent, 
if any, that either the veteran's 
thoracic or lumbosacral spine 
disabilities result in limitation of 
functional ability due to pain, loss of 
motion due to weakened movement, excess 
fatigability, or incoordination.  The 
examiner should also be requested to 
comment on whether pain is visibly 
manifested on movement of the thoracic or 
lumbosacral spine, the presence and 
degree, or absence of, muscle atrophy 
attributable to the service-connected 
thoracic and lumbar spine disability, the 
presence or absence of changes in 
condition of the skin indicating disuse 
due to the disabilities, or the presence 
or absence of any other objective 
manifestation demonstrating disuse of 
functional impairment due to pain 
attributable to the service-connected 
degenerative joint and disc disease of 
the lumbosacral and thoracic spine.

2.  Then, the case should be reviewed by 
the RO, including consideration of 
whether 38 C.F.R. §§ 4.40, 4.45, 4.59, 
Diagnostic Code 5285, as well as the 
Court's holdings in Lichtenfels v. 
Derwinski, 1 Vet. App. 484 (1991) and 
DeLuca v. Brown, 8 Vet. App. 202 (1995) 
apply to the service-connected 
degenerative joint and disc disease of 
the thoracic and lumbosacral spine.  The 
RO should also specifically document 
consideration of 38 C.F.R. § 3.321(b)(1).  
See Floyd v. Brown, 9 Vet. App. 88, 96 
(1996) (the Board is precluded from 
assigning an extra-schedular rating in 
the first instance).

If the benefit sought on appeal is not granted, the veteran 
and his representative should be provided a supplemental 
statement of the case and an opportunity to respond.  The 
case should then be returned to the Board for further review.  
The appellant has the right to submit additional evidence and 
argument on the matter remanded to the RO.  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 or the U.S. 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).  Also, VBA Adjudication 
Procedure Manual, M21-1, Part IV, directs the RO to provide 
expeditious handling of all cases remanded by the Board and 
the Court.  See M21-1, Part IV, paras. 8.44-8.45 and 38.02-
38.03.



		
	J.F. GOUGH
	Member, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a 
decision of the Board is appealable to the U.S. 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).