Citation Nr: 1744530 Decision Date: 10/05/17 Archive Date: 10/17/17 DOCKET NO. 10-46 697 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a rating in excess of 20 percent for lumbosacral degenerative disc disease (DDD) with L4 wedging. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Mine, Associate Counsel INTRODUCTION The Veteran had active service from October 1955 to November 1975. This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which granted an increased rating from 10 to 20 percent for lumbosacral DDD with L4 wedging, effective July 7, 2008, and granted separate ratings for radiculopathy of the right and left lower extremities, each assigned initial 10 percent ratings from August 12, 2008. A January 2013 rating decision granted increased 20 percent ratings for radiculopathy of each lower extremity. In a November 2013 decision, the Board denied a rating in excess of 20 percent for lumbosacral DDD with L4 wedging; and denied ratings in excess of 20 percent for radiculopathy of the right and left lower extremities. The Veteran appealed the Board's November 2013 decision to the United States Court of Appeals for Veterans Claims (Court). In November 2014, the Court granted a joint motion for partial remand (JMPR) vacating that portion of the decision in which the Board denied a rating in excess of 20 percent for lumbosacral DDD with L4 wedging, and remanding the claim to the Board for further proceedings consistent with the JMPR. An Order to this effect was issued in November 2014. The portion of the decision in which the Board denied ratings in excess of 20 percent for radiculopathy of the right and left lower extremities was abandoned and these claims were dismissed by the Court pursuant to the November 2014 Order. See McPhail v. Nicholson, 19 Vet. App. 30, 22 (2005) (dismissing abandoned claims on appeal). In March 2015, the Board remanded the issue of entitlement to a rating in excess of 20 percent for lumbosacral DDD with L4 wedging for additional development pursuant to the November 2014 JMPR. In a February 2016 decision, the Board again denied a rating in excess of 20 percent for lumbosacral DDD with L4 wedging. The Veteran appealed the Board's February 2016 decision to the Court. In April 2017, the Court granted a joint motion for remand (JMR), vacating the Board's decision and remanding the claim to the Board for further development consistent with the JMR. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In the April 2017 JMR, the parties agreed that the Board erred in relying on an October 2015 VA examination report, reasoning that the examination was inadequate as it failed to address the Veteran's additional loss of range or motion due to due to flare-ups or when the joint is used repeatedly over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011); DeLuca v. Brown, 8 Vet. App.202, 206 (1995). The October 2015 VA examiner stated that determining any additional loss of range of motion after repeated use over time would require speculation, noting that the Veteran had not has a session of repeated use over time just prior to the examination. The parties agreed that if the Veteran had been asked to engage in repeated use over time just prior to the examination, the VA examiner would have been able to render a non-speculative opinion. Further, the VA examiner reported that an opinion regarding additional limitation during a flare-up would require speculation because the Veteran was not experiencing a flare-up at the time of the examination. However, the parties reasoned that it was unclear whether the examiner "considered all procurable and assembled data, by obtaining all tests and records that might reasonably illuminate the medical analysis." The JMR noted that the VA examiner referenced and acknowledged Veteran's reports of functional loss due to flare-ups, but offered no opinion or analysis of the impact such pain had on his functional ability during flare-ups, nor offered any explanation why such information could not feasibly be determined. For these reasons the parties agreed that the October 2015 VA examination was inadequate per Jones, v. Shinseki, 23 Vet. App. 382, 390 (2010). Thus, the JMR directed the Board to remand the Veteran's claim to obtain a new, adequate examination which specifically addresses the additional functional loss due to flare-ups and upon repeated use of the joint, or if the examiner cannot do so, provide an adequate reason why such information cannot reasonably be determined. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Contact the Veteran, and, with his assistance, identify any outstanding records of pertinent medical treatment from private or VA health care providers. 2. After undertaking the development listed above to the extent possible, schedule the Veteran for a VA examination with a medical professional of sufficient expertise to determine the current severity of the Veteran's service-connected lumbosacral degenerative disc disease (DDD) with L4 wedging. The claims file must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. After reviewing the claims file and examining the Veteran, the examiner should specifically address the following: a) Range of motion testing should be undertaken, to include after repetitive use. The examiner is to report the range of motion measurements in degrees. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; (2) after repetitive use over time; (3) in weight bearing; and (4) as a result of pain, weakness, fatigability, or incoordination. The examiner should also address whether there is a difference in active range of motion, versus passive range of motion. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In any event, the examiner should fully describe the any associated functional limitations. b) The examiner should specifically offer an opinion as to the impact of the Veteran's reported functional loss due to pain during flare-ups on his functional ability, considering all procurable and assembled data, and by obtaining all tests and records that might reasonably illuminate the medical analysis. If the examiner deems it necessary, the Veteran should be asked to engage in repetitive use over time prior to the examination. If the examiner is unable to conduct any of the required testing he or she should clearly explain why that is so. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. 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). _________________________________________________ MICHAEL LANE 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).