Citation Nr: 1719682 Decision Date: 06/02/17 Archive Date: 06/14/17 DOCKET NO. 13-19 949 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for a lumbar strain prior to September 12, 2016 and in excess of 20 percent thereafter. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2010 to August 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Board remanded the Veteran's claim in August 2016. The Veteran testified at a May 2016 Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran was afforded VA examinations for her lumbar strain disability in September 2011 and September 2016. The United States Court of Appeals for Veterans Claims has held 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" 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 (2016) states that "[t]he 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 prior VA examinations did not comply with Correia and as such, remand is required so that the Veteran may be afforded a new VA examination that contains adequate information pursuant to Correia. The new VA examination must address whether there are any associated objective neurologic abnormalities with the Veteran's lumbar strain disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242 (2016) (providing that any associated objective neurologic abnormalities are to be separately evaluated under an appropriate diagnostic code). In this regard, in August 2016 the Board remanded this claim, in part, for a VA examination that addressed this issue. A September 2016 VA examination report noted that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy and that there were no other neurologic abnormalities or findings related to the Veteran's back condition, but no explanation was offered to support these conclusions. Also of record is a July 2015 private medical record from R.S., DC (presumably Doctor of Chiropractic), which noted a diagnosis of "[r]adicular synd[rome] of lower limbs." As such, the examiner on remand will be asked to consider this private medical record when addressing this issue and will also be instructed to include the underlying reasons for any conclusions reached. In addition, while on remand, all outstanding VA treatment records must be obtained (the most recent VA treatment records of record are from August 2016). Finally, the August 2016 Board remand referenced that the Veteran reported at the May 2016 Board hearing to having received chiropractic treatment from a private provider and remanded in part to request that the Veteran submit a release for or submits any private treatment records associated with her lumbar strain disability. No release or records were obtained on remand. VA treatment records obtained on remand, however, indicated that at least some of the Veteran's private chiropractic treatment was received on a fee basis through VA and that VA has possession of some of these records. In this regard, an August 2014 VA treatment note referenced chiropractic services being approved through the fee basis department and other VA treatment notes referenced documents related to such services that are in VA's possession but which are not currently of record on appeal. Specifically, an August 21, 2014 note titled "Fee Basis Outsourced Services" referenced a scanned document available in VistA imaging and a June 30, 2015 VA treatment note titled "Non VA Care Consult Result Note" stated "[s]ee scanned document for report" and referenced Chiropractic Care on August 21, 2014. On remand, these outstanding private treatment records referenced in VA treatment records as being in VA's possession must be associated with the Veteran's claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records (the most recent VA treatment records of record are from August 2016). 2. Associate with the Veteran's claims file the outstanding private treatment records referenced in VA treatment records as being in VA's possession. For example, August 21, 2014 and June 30, 2015 VA treatment notes referenced private chiropractic treatment records as being scanned (see the body of the remand for additional discussion). 3. Afford the Veteran an appropriate VA examination to determine the severity of her lumbar strain disability. With respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and nonweight-bearing conditions (pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016)). If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. The examiner must address whether there are any associated objective neurologic abnormalities with the Veteran's lumbar strain disability. While review of the entire claims folder is required, attention is invited to a July 2015 private medical record from R.S., DC (presumably Doctor of Chiropractic), which noted a diagnosis of "[r]adicular synd[rome] of lower limbs." The examiner must include the underlying reasons for any conclusions reached regarding whether there are any associated objective neurologic abnormalities with the Veteran's lumbar strain disability. 4. After completing the requested actions, readjudicate the claim in light of all pertinent evidence. If the benefits sought remain denied, furnish to the Veteran and her representative a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the matter 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). _________________________________________________ H. N. SCHWARTZ 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) (2016).