Citation Nr: 1751441 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 13-06 993 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an initial rating in excess of 20 percent for service-connected lumbosacral intervertebral disc syndrome, and in excess of 40 percent on or after February 9, 2016. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Nguyen, Associate Counsel INTRODUCTION The Veteran served on active duty from August 2005 to April 2010. He also had subsequent reserve duty service. This matter comes before the Board of Veteran's Appeals Board (Board) on appeal from a September 2010 rating decision from the Regional Office in New York, New York (RO), Department of Veterans Affairs (VA) and a December 2015 Board remand. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2015. A transcript of that hearing has been associated with the claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) claims file. LCM contains documents that are either duplicative of the evidence in VBMS or not relevant to the issue on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Remand is required for an adequate VA examination. If VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Where the record does not adequately reveal the current state of the disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Additionally, VA examination of the joints must, wherever possible, include 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. 38 C.F.R. § 4.59 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016). A VA lumbar spine examination was conducted in February 2016. The examiner found that the Veteran's range of motion fell outside of the normal range, and noted that the Veteran experienced pain during all ranges of motion and that pain, fatigue, weakness, and lack of endurance significantly limited the Veteran's functional ability with repeated use over a period of time as well as during periods of flare-ups. However, the examination did not include testing for pain on both active and passive motion, nor weight-bearing and nonweight-bearing. The Board finds that a new VA examination is necessary to ensure compliance with the requirements of Correia. Additionally, the examiner noted that the Veteran was not diagnosed with ankylosis, see pages 1 and 7 of VA examination, yet elsewhere in the examination report inconsistently noted that a contributing factor to the Veteran's disability, to include less movement than normal, was due to ankylosis. See page 4 of VA Examination. Thus the examination report is inconsistent. Furthermore, the February 2016 examiner found that the Veteran had intervertebral disc syndrome (IVDS) of the thoracolumbar spine and stated that the Veteran had episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician within the past 12 months, with episodes of bed rest having a total duration of at least six weeks over the past 12 months. However, when asked to provide the documentation to support this conclusion, the examiner stated that she relied solely on the Veteran's statements without documentation. See page 7 of VA examination. In order for a disability to be rated under Diagnostic Code 5243, the Veteran must have experienced at least one week of incapacitating episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See Diagnostic Code 5243, Note 2. There is no evidence of record demonstrating a prescription of bed rest by a treating physician. Remand is necessary to clarify whether the Veteran meets the criteria for rating purposes under Diagnostic Code 5243. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his or her representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the severity of the service-connected back disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a) The examiner must utilize the appropriate Disability Benefits Questionnaire. The examiner is also asked to indicate the point during range of motion testing that motion is limited by pain. The examiner must test the range of motion and pain of the lumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. (b) The examiner must address the February 2016 examination's finding of IVDS and explain whether or not such a finding is supported by the record. 4. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim, and that the consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 5. Ensure compliance with the directives of this remand. If a report is deficient in any manner, implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ K. MILLIKAN 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).