Citation Nr: 1723149 Decision Date: 06/21/17 Archive Date: 06/29/17 DOCKET NO. 14-18 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUE Entitlement to an evaluation in excess of 20 percent for chronic low back strain with sacroiliac joint dysfunction and gluteal weakness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Budd, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1978 to October 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. This matter was denied by the Board in a November 2015 decision. The Veteran appealed the denial in this matter to the United States Court of Appeals for Veterans Claims (Court). In January 2017, the Court issued an order granting a Joint Motion for Partial Remand. The order served to vacate and remand the portion of the November 2015 decision denying entitlement to an increased rating for chronic low back strain. The appeal is REMANDED to the agency of original jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The January 2013 VA examination report indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. However, during the examination, the Veteran indicated that he was starting to get a "pinched nerve feeling" in his right leg with more prolonged outings depending on activity level. He reported that his right foot falls asleep, and feels numb and tingling. The Veteran reported pain into the buttocks and pain into the right lateral calf that is "sort of burning." The examiner did not address this report of pain, numbness, and tingling in the right lower extremity when determining that the Veteran did not have signs or symptoms of radiculopathy. A July 2012 VA treatment note also indicated that the Veteran reported pain going from his back to the posterior right leg, although later that note indicated that there was pain in the back but no radiation. This note included an assessment of sciatica and shin splints. A remand is appropriate to determine whether the pain described by the Veteran is appropriately characterized as radicular pain related to his service-connected back disability. As this matter is being remanded, it is also appropriate to ensure that the examination is in compliance with Correia v. McDonald, 28 Vet. App. 158 (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 provides 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 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. The claims folder should also be updated to include VA treatment records compiled since February 26, 2014. See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records for the Veteran from the Iowa City VA Health Care System and all associated outpatient clinics dated from February 26, 2014 to the present. If any records cannot be obtained after reasonable efforts have been made, notify the Veteran and allow him the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). All attempts to obtain the records must be documented in the claims file. 2. Schedule the Veteran for a VA examination with an appropriate VA clinician to ascertain the nature and severity of his chronic low back strain with sacroiliac joint dysfunction and gluteal weakness. The examiner should perform all necessary diagnostic tests, and report all clinical manifestations in detail. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination report should record the results of range of motion testing of the lumbar spine for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the lumbar spine cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done and why. The examination report should address whether the Veteran's functional ability is limited during flare-ups or when the lumbar spine is used repeatedly over a period of time. The examiner should provide the degree of any additional range of motion loss due to pain on use or during flare-ups. If the examiner is unable to do so without resorting to speculation, he or she must explain why the information needed could not be feasibly provided, such as whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). The examiner is also to specifically discuss whether the Veteran's low back strain with sacroiliac joint dysfunction and gluteal weakness is manifested by any neurological impairment, including radiculopathy, and if so, which nerves are involved, and the extent of the impairment. The examiner is to consider the Veteran's lay statements in the January 2013 VA examination concerning a "pinched nerve feeling" in his right leg, and the July 2012 VA treatment note discussing pain going from the back to the posterior right leg with assessments of sciatica and shin splints. 3. After completing the above development, readjudicate the issue on appeal. If the benefit sought remains denied, issue a supplemental statement of the case and return the case to the Board. The appellant 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). _________________________________________________ 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) (2016).