Citation Nr: 1800405 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 11-18 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an initial disability rating for multilevel spondylarthroplasty of the lumbar spine in excess of 10 percent prior to November 5, 2014, and in excess of 40 percent thereafter. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Vang, Associate Counsel INTRODUCTION The Veteran had active service from June 1988 to April 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. Jurisdiction currently lies with the Atlanta, Georgia VARO. This claim was previously before the Board in July 2014 and was remanded for additional development. On remand, the VARO increased the rating of the Veteran's service-connected spondylarthroplasty to 40 percent effective November 5, 2014. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks an increased disability rating for service-connected multilevel spondylarthroplasty in excess of 10 percent prior to November 5, 2014, and in excess of 40 percent thereafter. Having reviewed the record, the Board finds that additional development is warranted. During the August 2016 examination, the Veteran reported flare-ups that were described as daily pain. Flexion was 90 degrees with pain, extension was 30 degrees, left and right lateral flexion were 30 degrees, and left and right rotation were 30 degrees. The examiner reported that repetitive use testing was not conducted. The Veteran reported occasional flare-ups of his back with strenuous activities, but the examiner stated that she was unable to report whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time or with flare-ups. A November 2016 Compensation and Pension Examination Inquiry noted that the August 2016 examination was inadequate and noted that Veteran did not need to report for examination regarding the lumber spine. An examination report was provided in November 2016; it is unclear whether the Veteran was afforded a new examination or an addendum opinion. Indeed, much of the data, to include range of motion testing, is identical to the August 2016 examination results. The November 2016 VA examination report noted the Veteran's reports of flare-ups described as daily pain; however, the examiner stated that there was no pain noted on examination or on weight-bearing. She also noted that the Veteran was able to perform repetitive use testing, and that there was no additional loss of function or range of motion after repetitive testing. However, she also stated that the Veteran was not being examined immediately after repetitive use over time, and did not provide range of motion measurements after repetitive testing. The Board finds that remand is warranted to clarify whether the Veteran's reported pain and flare-ups result in additional limitation of range of motion. See DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). Here, the examiner stated that the Veteran needed to be examined during a flare-up in order for her to render an opinion on whether pain, weakness, fatigability, or incoordination significantly limited functional impairment. Additionally, though the examiner did not observe pain on examination, the Veteran has reported that he experienced flare-ups in the form of daily pain, particularly with strenuous activities. Of note, in June 2011, the Veteran described pain that increased throughout the day that limited his ability to walk, lift items, bend over, touch his knees, or dress himself. Based on the foregoing, remand is warranted for a new examination to determine whether pain during flare-ups results in additional limitations. The examiner should also attempt to conduct repetitive use testing and report range of motion measurements after repetitive use testing. Outstanding VA medical records relating to the Veteran's claim should be obtained and associated with the claims file. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding VA medical records not already of record relating to the claim. 2. Afford the Veteran an examination to determine the nature and severity of his service-connected multilevel spondylarthroplasty of the lumbar spine. The electronic claims file should be forwarded to an examiner. All indicated studies should be performed. The examiner should follow the below instructions: a) Test range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the lumbar spine and report any findings. b) Address whether there is additional loss of function or range of motion due to pain and/or flare-ups. The examiner's attention is invited to the Veteran's June 2011 statement describing increasing pain throughout the day that limits his ability to walk, lift items, bend over, touch his knees, or dress himself; and the Veteran's August 2016 report of flare-ups that manifested in the form of daily pain, particularly with strenuous activities. c) Conduct repetitive use testing and indicate whether there is additional loss of function or range of motion after repetitive use testing. 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. 3. Ensure completion of the foregoing and any other development deemed necessary, then readjudicate the Veteran's claim. If the requested benefit remains denied, the Veteran and his representative should be provided with a Supplemental Statement of the Case and an opportunity to respond. 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.A. §§ 5109B, 7112 (West 2014). ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs