Citation Nr: 1746932 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 13-35 133 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial rating in excess of 0 percent for a low back disability (lumbar strain). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel INTRODUCTION The Veteran served on active duty from December 2007 to November 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran requested a hearing in his December 2013 substantive appeal. However, the Veteran, through his representative, withdrew his request in a December 2015 statement. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the delay, further development is necessary prior to the adjudication of the issue on appeal. The Board finds that the VA thoracolumbar spine examination of record is inadequate because it does not include the range of motion testing results required by the Court in Correia, 28 Vet. App. 158. Specifically, although range of motion testing was performed, the examiner did not indicate whether range of motion testing was conducted in active motion, passive motion, weight-bearing and nonweight-bearing. In Correia, the Court found that 38 C.F.R. § 4.59 requires that VA joint examinations must, where possible, include range of motion results 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. Id. at 168-169. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, the Board finds that a new VA examination is required. The examiner should also render a retrospective opinion on the measurements required by Correia. Accordingly, the case is REMANDED for the following action: 1. Verify the Veteran's current address. 2. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 3. Schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected thoracolumbar spine disability. The claims file (including any additional medical evidence obtained as a result of this Remand) should be made available to the examiner for review. The examiner should consider the full history of the identified thoracolumbar spine disability, including the Veteran's competent account of his symptoms (continuous low back pain and discomfort that interferes with his ability to perform every day ordinary activities, without weekly adjustments the pain and numbness returns and affects his everyday routine, flare-ups etc.) Range of motion should be reported, 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. A 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 doing so, the examiner is to provide the current ranges of motion 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. The examiner should also review the prior VA examination report, and provide a retrospective opinion as to the range of motion of the thoracolumbar spine in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If it is not possible to provide a retrospective opinion without resorting to mere speculation, he or she should clearly explain why that is so. 4. Readjudicate the claim on appeal. If the benefits requested on appeal are not granted in full, the Veteran and his representative should be furnished a supplemental statement of the case and provided an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran 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.S. §§ 5109B, 7112 (LexisNexis 2017). _________________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.S. § 7252 (LexisNexis 2017), 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) (2017).