Citation Nr: 1724271 Decision Date: 06/27/17 Archive Date: 07/10/17 DOCKET NO. 13-25 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to disability ratings for lumbar strain and multi-level degenerative disc disease and degenerative joint disease of the lumbar spine with radicular symptoms in the lower extremities in excess of 10 percent prior to July 14, 2014, and 20 percent on and after July 14, 2014. REPRESENTATION Veteran represented by: Daniel F. Smith, Attorney ATTORNEY FOR THE BOARD Ryan Frank, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Marine Corps from July 1991 to July 1995. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In the April 2011 rating decision, the RO denied a rating in excess of 10 percent for chronic low back pain with radicular symptoms in the left lower extremity. This appeal was previously remanded by the Board in December 2013 for further development. It has been returned to the Board for further review. In a July 2014 rating decision, the RO recharacterized the Veteran's service-connected low back disability as lumbar strain and multi-level degenerative disc disease and degenerative joint disease of the lumbar spine with a history of radicular symptoms in the lower extremities and increased the disability rating to 20 percent, effective July 14, 2014. As this rating does not provide the maximum benefit available for the full period on appeal, the issue remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran was most recently afforded a VA thoracolumbar spine examination on July 14, 2014. Although the July 2014 VA examiner described the range of motion of the Veteran's thoracolumbar spine, it is not clear whether this was active or passive range of motion, in weight-bearing or nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that 38 C.F.R. § 4.59 requires that an adequate VA examination of the joints must, whenever possible, include the results of the range of motion testing 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). A remand is necessary to afford the Veteran a VA examination compliant with Correia's requirements. Accordingly, the case is REMANDED for the following action: 1. Arrange for the Veteran to have an examination by an appropriate examiner for the purpose of determining the current severity of his lumbar strain and multi-level degenerative disc disease and degenerative joint disease of the lumbar spine with radicular symptoms in the lower extremities. The electronic claims file must be made available to the examiner for review, and the examination must reflect that such review has been accomplished. The examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any symptoms of lumbar strain and multi-level degenerative disc disease and degenerative joint disease of the lumbar spine with radicular symptoms in the lower extremities. Range of motion testing in active motion, passive motion, weight-bearing, and nonweight-bearing, for the spine must be conducted. 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 this is so. The examiner must discuss the Veteran's lay statements regarding the history, symptoms, and functional impairment caused by any lumbar strain and multi-level degenerative disc disease and degenerative joint disease of the lumbar spine with radicular symptoms in the lower extremities. A complete rationale for any opinion expressed must be provided. If the examiner is unable to provide any requested opinion, that fact must be stated and the reasons why an opinion cannot be provided explained. 2. Then, readjudicate the claim. If the decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ GAYLE E. STROMMEN 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).