Citation Nr: 1753666 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 09-42 205A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for lumbar degenerative disc disease with stenosis and thoracic scoliosis (hereinafter, thoracolumbar spine disability) prior to April 30, 2015 and in excess of 40 percent thereafter (not including any period of total disability due to convalescence). 2. Entitlement to an initial rating in excess of 10 percent for cervical degenerative disc disease with symptoms of headaches and stenosis (hereinafter, cervical spine disability), prior to March 3, 2015 and in excess of 20 percent thereafter. 3. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1995 to July 2007 in the United States Army. These matters are before the Board of Veterans' Appeals (BVA or Board) on appeal from January 2008 and May 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. (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.) REMAND In June 2013, the Board remanded this case for additional development. After review of the claim file, the Board finds the appeal must be remanded again to ensure that the Veteran is accorded full compliance with the statutory duty to assist. I. Missing Records A review of the claim file indicates medical records are missing. On a January 2016 claim for TDIU application form (VA Form 21-8940), the Veteran wrote he received treatment for his back by two physicians at Nortons until August 2015, and a third physician from December 2015 to present. However, the most recent treatment records from Norton Healthcare facilities are from May 2015. There is no indication in the record that reasonable efforts have been made to obtain updated records from Norton Healthcare. 38 C.F.R. § 3.159(c)(1) (2017). In compliance with the June 2013 remand, the RO obtained records from Ireland Army Community Hospital (IACH) dated from September 2010. The RO obtained records through April 2013. However, the Veteran provided an August 15, 2014 radiological examination report from IACH, which included a comparison between an MRI taken that day and radiographs from three days prior. The Veteran did not provide records from his visit from August 12, 2014, suggesting there are outstanding records at IACH. Additionally, the Veteran has reported that he is waiting for Social Security Administration disability benefits (or a decision on benefits). See VA treatment note from July 8, 2016. However, no records from the Social Security Administration have been associated with the claim file, and no evidence of an attempt to obtain such records exists in the claim file. In light of this, the record appears to be incomplete, and such evidence may support the Veteran's claim. Furthermore, the Board acknowledges that these records, and those at IACH, are with a Federal facility and that VA has an increased obligation in regard to obtaining records in the custody of a Federal department or agency. 38 C.F.R. § 3.159(c)(2). II. Examinations Not Adequate The Veteran last underwent VA examinations to determine the severity of the disabilities on appeal in March 2015 (cervical spine) and March 2016 (thoracolumbar spine). Those examinations were not complaint with 38 C.F.R. § 4.59 and the United States Court of Appeals for Veterans Claims (Court) decision in Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the Court held that to be adequate, a VA examination of joints must, wherever possible, include testing that permits an adjudicator to assess the effect of painful motion. Such an examination should include range of motion tests for both active and passive motion, in weight-bearing and non-weight-bearing circumstances and, if possible, the same testing of the opposite undamaged joint in compliance with 38 C.F.R. § 4.59. See Correia, 28 Vet. App. at 165, 169-70. Because the March 2015 and March 2016 VA examinations do not comply with Correia, new examinations are warranted. Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding VA records of evaluation and/or treatment since September 2015. 2. Obtain outstanding records of evaluation and/or treatment since April 2013 from IAHC. 3. Contact the Social Security Administration and request all pertinent documentation pertaining to any claim for disability benefits by the Veteran including any medical records that Social Security has regarding the Veteran. These records should be associated with the claims file. All efforts to obtain the records should be associated with the claim file. 4. Request that the Veteran identify all sources of treatment that he has received for his thoracolumbar and cervical spine disabilities and to provide any releases necessary for VA to secure outstanding records of such treatment, to include Norton Healthcare. Reasonable efforts should be made to obtain all such treatment records so identified or authorized for release. 5. Schedule the Veteran for appropriate VA examinations to determine the current severity and manifestations, to include neurologic, of his service-connected thoracolumbar and cervical spine disabilities. Full range of motion testing must be performed where possible. The joints involved should be tested in both active and passive motion, and in 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 in this case, he or she should clearly explain the basis for this decision. Request that the examiner comment on what aspects of the Veteran's daily activities and occupational function are impaired by the thoracolumbar and cervical spine disabilities. All findings should be reported in detail. 6. Then, adjudicate the Veteran's pending claims in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case. The appellant 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. §§ 5109B, 7112 (2012). _________________________________________________ J. W. FRANCIS 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).