Citation Nr: 0001576 Decision Date: 01/19/00 Archive Date: 01/28/00 DOCKET NO. 98-12 983 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a rating in excess of 10 percent for a low back disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Sampson, Associate Counsel INTRODUCTION The veteran's active military service extended from February 1988 to November 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1998 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. During the pendency of this appeal, the appellant's claim was transferred from the RO in Louisville, Kentucky, to the RO in Roanoke, Virginia, pursuant to the appellant's change of address. REMAND The veteran's claim for an increased rating for his service- connected degenerative changes of the lumbosacral spine (hereinafter, "low back disability") is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, he has presented a claim which is plausible. His assertion that his service-connected low back disability is more severe than currently evaluated is plausible. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (where a veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well grounded claim for an increased rating). At his May 1999 personal hearing, the veteran testified that his condition had "gotten a little worse," and that he now was more disabled than when he was last examined by VA, in February 1998. See Snuffer v. Gober, 10 Vet. App. 400 (1997) ("where the record does not adequately reveal the current state of the claimed disability and the claim is well grounded, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination" (quoting Allday v. Brown, 7 Vet. App. 517, 526 (1995)). Consequently, another VA examination is indicated. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim, this case is REMANDED to the RO for the following: 1. The RO should schedule the veteran for a VA orthopedic examination to obtain the complete medical information necessary to adjudicate the claim for an increased rating for his service-connected low back disability. The claims folder must be available to the examiner for review before the examination. All necessary tests should be conducted. The examiner should review the results of any testing prior to completion of the report. The report of examination should be comprehensive and include a detailed account of all manifestations of spine pathology present. The examiner should provide a complete rationale for all conclusions reached. a. With respect to the functioning of the veteran's spine, attention should be given to the presence or absence of pain, any limitation of motion, swelling, muscle spasm, ankylosis, subluxation, lateral instability, dislocation, loose motion, crepitus, deformity or impairment. The examiner should provide complete and detailed discussion with respect to any weakness; fatigability; incoordination; restricted movement; or pain on motion and a description of the effect, if any, of pain on the function and movement of the spine. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see 38 C.F.R. §§ 4.40, 4.45 (1999) (functional loss may be due to pain, supported by adequate pathology). In particular, it should be ascertained whether there is additional motion lost due to pain on use or during exacerbation of the disability. b. The examiner should comment on the degree of limitation of normal functioning caused by pain. Range of motion studies should be conducted. The examiner should specify the results in actual numbers and degrees. c. The examiner should also comment on any neurological involvement, including whether there is sciatic neuropathy, whether there is muscle spasm, and whether ankle jerk is intact. 2. The RO should then review the claims folder and ensure that all of the foregoing development is completed. 3. The RO should thereafter review the entire claims folder and readjudicate the claim for an increased disability rating for a low back disorder. In this regard, the RO should give full consideration to the Court's decision in DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45 (1999). If the claim remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case and given the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The veteran needs to take no action until he is notified. The purpose of this REMAND is assist the veteran. The Board intimates no opinion as to the ultimate outcome of this case. 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. GEORGE R. SENYK 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).