Citation Nr: 1719984 Decision Date: 06/06/17 Archive Date: 06/21/17 DOCKET NO. 12-33 693A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent prior to February 18, 2011, and in excess of 20 percent thereafter for lumbar sprain with degenerative joint disease. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Florida Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD K. Forde, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1977 to December 1977 and November 1978 to June 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2010 and June 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A November 2012 rating decision granted an increased (20 percent) rating to the Veteran's back disability, effective February 18, 2011. In October 2016, the Veteran testified before the undersigned Veterans Law Judge sitting at the RO. A transcript of the hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran received a VA spine examination in February 2011. However, the evidence suggests that the Veteran's back disability may have worsened since the February 2011 examination. Specifically, the Veteran testified that he is unable to get out of bed two to three times per week. See October 2016 Board Hearing Transcript at 4. Additionally, he reported back spasms "all day, every day." Id. at 5. As there is evidence of potential worsening, the Board finds that a new examination should be provided in order to assess the current nature and severity of his back disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Further, the February 2011VA examination report does not include sufficient information regarding joint testing for pain on both active and passive motion, and in weight-bearing and nonweight-bearing. 38 C.F.R. §4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner should also render a retrospective opinion on the measurements required by Correia. As the issues of entitlement to an increased rating and entitlement to a TDIU are inextricably intertwined, the TDIU claim must be remanded as well. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Finally, updated private and VA treatment records should be secured. See 38 C.F.R. § 3.159(c); see also Sullivan v. McDonald, 815 F.3d 786 (2016). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding records from private medical treatment providers, to include Dr. A. Deukmedjian. 3. Then, schedule the Veteran for a VA examination to ascertain the nature and severity of his service-connected back disability. The claims file should be made available to and reviewed by the examiner. The examiner should perform all necessary diagnostic tests, and report all clinical manifestations in detail. Full range of motion testing must be performed where possible. The joints involved should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing and (4) in 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. Additionally, the examiner must provide an opinion as to the full range of motion throughout the appeal period (since October 2009) of the thoracolumbar spine in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. A rationale for any opinions expressed should be set forth. 4. Then, after taking any additional development deemed necessary, readjudicate the issues on appeal, including entitlement to a TDIU. The Veteran 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). _________________________________________________ S. BUSH 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).