Citation Nr: 1800228 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 14-05 580 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating in excess of 20 percent for degenerative disk disease, with degenerative joint disease of the lumbosacral spine. 2. Entitlement to a rating in excess of 10 percent for degenerative disk disease of the cervical spine. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Lewis, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from October 1974 to September 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2011 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran filed a Notice of Disagreement (NOD) in September 2011. The RO issued a Statement of the Case (SOC) in December 2013, and the Veteran submitted a VA Form 9 in February 2014. Thus, the Veteran perfected a timely appeal of these issues. The RO issued a Supplemental Statement of the Case (SSOC) in October 2016. In May 2017, the Veteran was afforded a videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript has been associated with the claims file. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, as well as the Veteran's Virtual VA paperless claims file. The issues on appeal are being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran seeks increased ratings for his service-connected degenerative disk disease, with degenerative joint disease of the lumbosacral spine, currently evaluated as 20 percent disabling, as well as his service-connected degenerative disk disease of the cervical spine, currently evaluated as 10 percent disabling. At his May 2017 Board hearing, the Veteran asserted that his service-connected conditions have worsened. Regarding his cervical spine disability, the Veteran asserted that his symptoms have gone from mild or moderate to severe. He indicated that he experiences functional impairment of his neck in the form of pain and limitation of motion, particularly when driving. Regarding his lumbosacral spine disability, the Veteran indicated that he experiences pain and limited motion. He asserted that he experiences difficulty bending, squatting, and turning. He further asserted that he cannot stand, sit, or walk for long periods of time and that he experiences difficulty picking up and holding heavy objects. The Veteran indicated that he had a forthcoming MRI at the San Antonio Army Medical Center. See May 2017 Hearing Transcript. The Veteran was last afforded a VA examination for his lumbosacral and cervical spine disabilities in July 2011, more than six years ago. Additionally, the most recent VA treatment records in the Veteran's claims file are from December 2016 and the record does not appear to contain the MRI results that the Veteran indicated were forthcoming in his May 2017 hearing. Given the Veteran's testimony regarding the severity of his lumbosacral and cervical spine disabilities, particularly his assertion that these conditions have worsened; the length of time since the Veteran's most recent examination; and because there are outstanding post-service treatment records, the Board finds that a new examination is warranted in order to fully evaluate the severity of the Veteran's lumbosacral and cervical spine disabilities. When available evidence is too old for an adequate evaluation of the Veteran's current condition, VA's duty to assist includes providing a new examination when there is evidence of a change in the disability since the last examination. Snuffer v. Gober, 10 Vet App 400 (1997). Given the potential of worsening, and because there is insufficient evidence upon which the Board can assess the current severity of the Veteran's disabilities, the Board finds that a new examination, with findings responsive to applicable rating criteria, is needed to fully and fairly evaluate the Veteran's claims for increased ratings. Caffrey v. Brown, 6 Vet. App. 377 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous.") Updated treatment records should also be associated with the claims file. Additionally, subsequent to the July 2011 examination, the Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that 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 nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. After reviewing the examination of record, the Board finds that it is incomplete in this regard and requires further medical guidance, in light of the recent holding in Correia. As the previous examination report does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination is necessary to decide the claims. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran and his representative a letter requesting that he provide sufficient information and, if necessary, authorization, to obtain any additional (VA and non-VA) records pertaining to treatment of his service-connected lumbosacral and cervical spine disabilities. In particular, the results of any recent diagnostic testing, to include an MRI conducted at the San Antonio Army Medical Center, should be associated with the claims file. The Veteran should also be afforded the opportunity to identify and submit any outstanding private records. 2. If the Veteran responds, assist him in obtaining any additional evidence identified, following the current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken. 3. After all records and/or responses received from each contacted entity have been associated with the claims file, schedule the Veteran for a VA examination by an appropriate examiner so as to determine the current level of impairment due to his service-connected lumbosacral and cervical spine disabilities. ? The claims file and a copy of this Remand are to be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the claims folder and the Remand have been reviewed. ? All studies and tests needed to ascertain the status of the service-connected lumbosacral and cervical spine disabilities, to include all indicated tests and studies to include x-ray examination and diagnostic imaging studies, if deemed necessary, should be performed and written interpretation of such should be associated with the examination report. ? Based on the examination of the Veteran, and review of the record, the examiner should fully describe the functional effects of the Veteran's service-connected lumbosacral and cervical spine disabilities on his activities of daily living. ? In particular, the examiner should describe what types of activities would be limited because of the service-connected lumbosacral and cervical spine disabilities, and what types of activities would not be limited (if any), and whether any limitation on activities is likely to be permanent. ? The examiner should generally record pertinent medical complaints, symptoms, and clinical findings. ? The examiner should describe, in degrees of excursion, active and passive ranges of motion for the lumbar and cervical spine, as well on weight-bearing and non-weight bearing, demonstrated on examination. If the lumbar and cervical spine cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done. ? The examiner should identify the presence and degree of, or absence of the following: muscle atrophy; weakness; incoordination; bone deformities; or, any other manifestations that would demonstrate disuse or functional impairment due to pain attributable to the service-connected lumbosacral and cervical spine disabilities. ? With respect to the subjective complaints of pain, the examiner is requested to specifically comment on whether pain is visibly manifested on movement of the lumbar spine and the cervical spine, and if so, at what point (expressed in degrees if possible) such pain is elicited during such testing. ? The examiner should comment on whether the Veteran's subjective complaints are consistent with the objective findings. ? If the severity of the manifestation cannot be quantified, the examiner should so indicate. ? The examiner is requested to express an opinion as to the following: (1) whether pain limits functional ability during flare-ups, or when the lumbar spine and cervical spine are used repeatedly over a period of time, and this determination, if feasible, should be expressed in terms of additional loss of range of motion due to pain on use or during flare-ups; and (2) whether as a result of the service-connected lumbosacral and cervical spine disabilities the Veteran exhibits any weakened movement, excess fatigability or incoordination, and these determinations, if feasible, should be expressed in terms of additional loss of range of motion resulting. ? The examiner is requested to identify the presence, or absence of ankylosis of the spine. If the presence of ankylosis is identified, this determination should be expressed in terms of whether the ankylosis is favorable or unfavorable; and, if feasible, in terms of the degrees in flexion or extension in which the spine is ankylosed. ? The examiner should identify any nerves and muscle groups affected and state whether the level of impairment is best characterized as mild, moderate, moderately severe, or severe. ? If any nerve involvement is wholly sensory, the examiner should so indicate. Complete, clearly-stated rationale for the conclusions reached must be provided. 5. After completing the requested actions, and any additional notification and/or development deemed warranted, re-adjudicate the claims. If the claims remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and be allowed an appropriate period of time for response. The case should be returned to the Board for further appellate review, if otherwise in order. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ DEBORAH W. SINGLETON 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).