Citation Nr: 1645413 Decision Date: 12/02/16 Archive Date: 12/19/16 DOCKET NO. 13-26 888 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial rating higher than 10 percent for service-connected residuals of a back injury with degenerative disc disease, herniated disc, and status post laminectomy (referred to hereinafter as "back disorder"). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. Becker, Counsel INTRODUCTION The Veteran served on active duty from May 1972 to May 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision in which the Department of Veterans Affairs (VA) Appeals Management Center (AMC) implemented the Board's August 2011 decision that granted service connection for the Veteran's back disorder. In the September 2011 rating action, the AMC then assigned an initial evaluation 10 percent. The Veteran appealed this latter determination. In June 2016, the Board remanded this matter for additional development. Unfortunately, and for the reasons set forth below, another REMAND of this appeal is necessary. Please note that this matter has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2014); 38 C.F.R. § 20.900(c) (2015). REMAND Although the delay entailed by another remand regarding the Veteran's claim for an initial rating higher than 10 percent for his service-connected back disorder is regrettable, it is unavoidable. Undertaking additional development prior to Board adjudication is the only way to ensure that the Veteran is afforded every possible consideration. That he must be afforded every possible consideration is acknowledged. Indeed, VA has a duty to assist him in substantiating his claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). VA has a duty to assist him in gathering evidence that may show he is entitled to the benefit sought. The Veteran underwent a VA medical examination of his back in July 2016. Per the Board's June 2016 remand, the purpose of this examination was to ensure the evidence included a current description of the Veteran's service-connected back disability. The Board finds that this has been accomplished. There indeed has been at least substantial compliance with all pertinent directives in the aforementioned remand, as required. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Stegall v. West, 11 Vet. App. 268 (1998). However, the examination now is inadequate in light of a recent decision of the United States Court of Appeals for Veterans Claims (Court). In particular, the Court held that VA medical examinations "must, whenever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59." Correia v. McDonald, 28 Vet. App. 158 (2016). That sentence reads, "the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." The Board acknowledges that there is no opposite joint for the back. However, while weight-bearing was referenced at the July 2016 examination, there was no mention of nonweight-bearing or active or passive motion. Arrangements, in sum, must be made for a new curative VA medical examination. This matter is REMANDED for the following. (Expedited handling is requested because this matter has been advanced on the Board's docket): 1. Arrange for the Veteran to undergo an appropriate VA medical examination regarding his service-connected back disorder. The examiner shall review the entire claims file to include the Board's remands, documenting such in an examination report to be placed therein. The examiner also shall document in the report an interview with the Veteran regarding his relevant history, current symptoms and flare-ups, as well as their impact on his work and daily life. All necessary tests and studies next shall be performed, the results of which shall be set forth in the report. These tests shall include range of motion-in active and passive motion, weight-bearing, and nonweight-bearing. The May 2013 version of the back (thoracolumbar spine) conditions disability benefits questionnaire (VA Form 21-0960M-14) may be utilized in this regard. If the aforementioned minimum required testing cannot be conducted or is not necessary for this Veteran, the examiner shall clearly and fully explain why in the report. 2. Then, rating claim on appeal. Issue a rating decision if the determination made is partially or wholly favorable to him. If it is partially or wholly unfavorable to him, issue a supplemental statement of the case (SSOC). Place a copy of the rating decision and/or SSOC in the claims file, and provide a copy to the Veteran and his representative. Allow them the requisite time period to respond to the SSOC before processing for return to the Board. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate to ensure the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005); Wood v. Derwinski, 1 Vet. App. 190 (1991). His failure to report for a VA medical examination, for example, may impact the determination made. 38 C.F.R. § 3.655 (2015). The Veteran also is advised of his right to submit additional evidence and argument himself or through his representative with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). It must be afforded prompt treatment. All remands by the Board or the Court indeed must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West 2014). Further, it is reiterated that this matter has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2); 38 C.F.R. § 20.900(c). _________________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2014). This remand is in the nature of a preliminary order and does not constitute a decision by the Board. 38 C.F.R. § 20.1100(b) (2015).