Citation Nr: 1751265 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 07-03 240 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for muscle spasms of the thoracic spine. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from June 2001 to January 2005. This case was previously before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The case has been remanded by the Board on multiple occasions, most recently in November 2016. In May 2010, the Veteran was afforded a videoconference hearing pursuant to the provisions of 38 U.S.C.A. § 7107(e) (West 2014). During this hearing, the undersigned Veterans Law Judge was located in Washington, D.C., and the Veteran was located at the RO. A transcript of this hearing is of record. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The most recent Board remand, consistent with the holding in Correia v. McDonald, 28 Vet. App. 158, 165 (2016), requested that the VA examination to address the claim for an increased rating for muscle spasms of the thoracic spine include range of motion findings on both active and passive range of motion and in weight-bearing and nonweight-bearing. Such was not accomplished in the December 2016 VA examination conducted pursuant to the November 2016 remand. Thus, as the Board is required to insure compliance with the instructions of it remands, and the Veteran otherwise asserted in a statement received in August 2017 that his service connected thoracic spine disability has worsened since the December 2016 VA examination, the AOJ will be requested upon remand to afford the Veteran another VA examination that includes the range of motion findings required by Correia. Stegall v. West, 11 Vet. App. 268 (1998). This remand will also afford the AOJ the opportunity to ask the clinician who conducts the VA examination requested below to apply a decision issued by the U.S. Court of Appeals for Veterans Claims issued after the November 2016 remand, Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court noted that the VA's Clinician's Guide specifically advises examiners to try to procure information necessary to render an opinion regarding flares from Veterans. The Court in Sharp found that the examination in question in that case to be inadequate because the examiner, although acknowledging that the Appellant was not then suffering from a flare of any of his conditions, failed to ascertain adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding his flares by alternative means. Id. The December 2016 VA examination did not reflect the considerations required by Sharp, and the instructions to the examiner below will request such consideration. As the resolution of the claim for an increased rating for the service connected thoracic spine disability potentially impacts the adjudication of the claim for TDIU, the Board's adjudication of this claim must be deferred. Harris v Derwinski, 1 Vet. App. 80 (1991). Accordingly, the case is REMANDED for the following action: 1. Arrange for a VA examination to determine the nature, severity, and extent of the current pathology associated with the service connected thoracic spine and disability. The electronic record should be made available to the examiner. Range of motion testing in active motion, passive motion, weight-bearing, and nonweight-bearing should be accomplished. If the examiner is unable to conduct such 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 describe the functional limitations resulting from the service connected thoracic spine disability, to include during flare-ups. If flare-ups are not shown during the examination, the examiner should conduct efforts to obtain adequate information regarding the impairment resulting from flare-ups by alternative means, to include statements as to any such impairment by the Veteran himself. The examiner should describe what types of employment activities would be limited because of the Veteran's service-connected thoracic spine disability, what types of employment would not be limited (if any), and whether any limitation on employment would likely be permanent. 2. After completion of the above and any other warranted development, the AOJ should re-adjudicate the claims that have been remanded. If a benefit sought on appeal remains denied, the AOJ shall provide the Veteran and his representative with an appropriate supplemental statement of the case. After they are afforded an opportunity to respond, the case should be returned to the Board for appellate review. 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). 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). _________________________________________________ MARJORIE A. AUER 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) (2017).