Citation Nr: 1632998 Decision Date: 08/19/16 Archive Date: 08/26/16 DOCKET NO. 14-28 757 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a higher rating for degenerative joint disease of the spine at L4-5 and L5-S1, rated as 10 percent disabling from September 1, 2013, through April 28, 2014, and 20 percent disabling from April 29, 2014, to include whether the reduction from 40 percent to 10 percent effective September 1, 2013, was proper. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. J. Anthony, Associate Counsel INTRODUCTION The Veteran had active service from December 1985 to August 1989. These matters are before the Board of Veterans' Appeals (Board) on appeal of a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which reduced the Veteran's rating for degenerative joint disease of the spine at L4-5 and L5-S1 from 40 percent to 10 percent, effective September 1, 2013. A May 2013 rating decision increased the Veteran's rating for degenerative joint disease of the spine at L4-5 and L5-S1 to 20 percent. That increase does not represent a full grant of the benefit sought. Therefore, the Veteran's appeal was not abrogated, and the issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In June 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the record. The Veteran has asserted that she is unable to work due, at least in part, to her service-connected lumbar spine disability. See, e.g., VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, received in April 2015. The Board observes that a July 2015 rating decision denied entitlement to a TDIU, and that the Veteran did not timely appeal that decision. See 38 C.F.R. §§ 20.201, 20.302. However, the Board finds that the issue of entitlement to a TDIU is properly before the Board on appeal at this time as part and parcel to the Veteran's claim for higher ratings for the service-connected lumbar spine disability, as reflected on the title page. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that additional evidence was associated with the record following issuance of the supplemental statement of the case in December 2014, to include records from the Social Security Administration and additional VA treatment records, and that the Veteran did not waive agency of original jurisdiction (AOJ) consideration of the additional evidence. See 38 C.F.R. § 20.1304 (2015). However, because the case must be remanded for additional development, the AOJ will have an opportunity to consider the additional evidence in the first instance when it readjudicates the claim following completion of the additional development. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND The Board finds that these matters must be remanded for further development before a decision may be made on the merits. The Veteran was most recently provided a VA examination as to the service-connected lumbar spine disability in April 2014. The report for that examination includes range-of-motion measurements for the Veteran's lumbar spine, to include descriptions of where objective evidence of painful motion begins and whether the Veteran has additional functional loss following repetitive use of the lumbar spine. However, the report does not specify whether the measurements were taken on active motion, on passive motion, on weight-bearing, or on nonweight-bearing. In addition, the examiner did not indicate that she was unable to perform range-of-motion testing on active, passive, weight-bearing, and nonweight-bearing or that such testing was not necessary. Therefore, the examination report does not make clear the extent to which pain affects the Veteran's passive, active, weight-bearing, and nonweight-bearing motion. In that regard, the Board observes that a new precedential opinion that directly impacts this case was issued by the United States Court of Appeals for Veterans Claims (Court). In Correia v. McDonald, ___Vet. App.___, No. 13-3238, 2016 WL 3591858 (July 5, 2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range-of-motion testing be conducted whenever possible in cases of joint disabilities. The final sentence of that section provides, in relevant part, that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing . . . ." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range-of-motion testing described in the final sentence of § 4.59. Here, the April 2014 VA examination report does not comply with Correia because it does not include range-of-motion testing on active, passive, weight-bearing, and nonweight-bearing or a statement to the effect that such testing was not possible or unnecessary in this case. Accordingly, the Veteran must be afforded a new VA spine examination that complies with Correia and includes all of the necessary information as set forth in 4.59. In addition, at the June 2015 Board hearing, the Veteran indicated that she would be submitting additional private medical records from Dr. J. Michel on the day of the hearing. However, records from Dr. J. Michel, to include the ones the Veteran referenced at the Board hearing, have not been associated with the record. Furthermore, the Veteran indicated at the hearing that she has a "civilian doctor," that records from that doctor had already been submitted, and that the doctor was going to mail additional records to VA. However, it is unclear whether any records from that doctor have been associated with the record. When reference is made to pertinent private medical records, VA is on notice of their existence and has a duty to assist the Veteran in attempting to obtain them. Ivey v. Derwinski, 2 Vet. App. 320, 323 (1992). Accordingly, on remand, efforts must be made to associate with the record the treatment records from Dr. J. Michel submitted by the Veteran at the June 2015 Board hearing and to identify, obtain, and associate with the record any other outstanding, relevant private treatment records, to include further records from Dr. J. Michel and from the civilian doctor referenced by the Veteran at the June 2015 Board hearing. As to the issue of entitlement to a TDIU, the Board finds that the outcome of the Veteran's claim for a higher rating that is remanded herein could have a significant impact on the TDIU issue. As such, the TDIU issue is inextricably intertwined with the claim for a higher rating. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Therefore, the Board finds that the claim for a higher rating that is remanded herein must be adjudicated by the AOJ prior to appellate consideration of entitlement to a TDIU. Accordingly, the case is REMANDED for the following action: 1. Associate with the record the medical treatment records from Dr. J. Michel submitted by the Veteran at the June 2015 Board hearing. If those records cannot be located or are otherwise no longer available for inclusion in the record, the Veteran should be so notified. 2. Provide the Veteran with a VA Form 21-4142, Authorization and Consent to Release Information to VA, and a VA Form 21-4142a, General Release for Medical Provider Information to VA, to identify all treatment from VA and private health care providers. The letter accompanying the VA Form 21-4142 should inform the Veteran that VA is particularly interested in records from Dr. J. Michel and the civilian doctor to which she referred at her June 2015 Board hearing. All attempts to obtain these records must be documented in the record. The Veteran must be notified of any inability to obtain the requested documents. Allow for an appropriate amount of time for response and complete any additional development resulting from the Veteran's response. 3. After the above development is completed, schedule the Veteran for a VA examination to determine the current nature and severity of her service-connected degenerative joint disease of the spine at L4-5 and L5-S1. The examination should include all studies, tests, and evaluations deemed necessary by the examiner. The examiner should report all manifestations related to that service-connected disability. The record and a copy of this Remand must be made available to and reviewed by the examiner. The examiner must address the following: a) Pursuant to Correia v. McDonald, ___Vet. App. ___, No. 13-3238, 2016 WL 3591858 (July 5, 2016), and 38 C.F.R. § 4.59 (2015), the examination should record the results of range-of-motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examination results should be recorded using VA Form 21-0960M-14, May 2013, Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ), or a more recent revision of that DBQ, if possible. In recording the ranges of motion for the Veteran's lumbar spine, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. The examiner should also indicate whether the Veteran experiences additional functional loss during flare-ups of the service-connected lumbar spine disability. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. b) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. c) Conduct neurological testing to assess the nature and severity of the Veteran's service-connected radiculopathy of the bilateral lower extremities that is associated with the service-connected degenerative joint disease of the spine at L4-5 and L5-S1. d) Provide a description of how the Veteran's service-connected lumbar spine disability affects or likely affects her ability to perform work and work-like tasks. For example, indicate the extent to which the disability affects her ability to sit, stand, and/or walk; lift and/or carry; and perform postural activities such as bending, crouching, and squatting. The examiner must note that the record was reviewed. The examiner must provide a complete rationale for any opinion expressed. 4. After completion of the above, review the expanded record, including the evidence entered since the Statement of the Case, and determine whether the benefits sought may be granted. If any benefit sought remains denied, furnish the Veteran and her representative with a supplemental statement of the case. A reasonable period should be allowed for response before the appeal is returned to the Board. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).