Citation Nr: 1745534 Decision Date: 10/12/17 Archive Date: 10/19/17 DOCKET NO. 11-17 595 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to a rating in excess of 10 percent for lumbar sprain with degenerative disc disease. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD S. S. Mahoney, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1966 to March 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. In November 2015, the Board remanded the issues on appeal for further development. The appeal is again REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran was afforded VA examinations in connection with his service-connected back disability in March 2010 and May 2016. These examinations do not comply with Correia v. McDonald, 28 Vet. App. 158 (2016) (the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint). Accordingly, an updated VA examination consistent with the requirements set forth by Correia and a retrospective opinion is needed on remand. As the Veteran asserts that he is unemployable as a result of his service-connected disability, his entitlement to a TDIU is inextricably intertwined with the instant appeal and must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). Any outstanding records should also be secured on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding pertinent private treatment records, including any updated records from North Idaho Physical Therapy. 3. Then schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected back disability. The entire claims file should be made available to and reviewed by the examiner and all findings reported in detail, to include the following: Full range of motion testing must be performed where possible, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. 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, concludes that the required testing is not necessary in this case, or is not medically appropriate, he or she should clearly explain why that is so. The examiner should also provide an opinion as to the range of motion throughout the appeal period (since January 2010) in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. A complete rationale for any opinions expressed should be set forth. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). In assessing functional loss, flare-ups must be considered, and the examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. Finally, the examiner should assess the functional limitations the Veteran has experienced as a result of his service-connected back disability and what impact, if any, those have on his occupational functioning. 4. Then, after taking any additional development deemed necessary, readjudicate the claims, to include the Veteran's 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). These claims 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).