Citation Nr: 1800462 Decision Date: 01/04/18 Archive Date: 01/19/18 DOCKET NO. 12-29 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for sciatica, right, associated with lumbosacral degenerative joint disease and degenerative disc disease (the back issue). 2. Entitlement to an initial disability rating in excess of 10 percent for sciatica, left, associated with lumbosacral degenerative joint disease and degenerative disc disease. 3. Entitlement to a disability rating in excess of 20 percent for lumbosacral degenerative joint disease and degenerative disc disease ("back disability"). REPRESENTATION Veteran represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Kovarovic, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1977 to June 1994. These matters come before the Board of Veterans' Appeals (Board) from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado, which continued the previous assignment of a 10 percent rating for the Veteran's back disability. In April 2016, the Board assigned a 20 percent rating for the Veteran's back disability, and remanded the following matters for additional development, which has since been completed: (1) Whether entitlement to separate ratings for any associated neurological disorders was warranted; and (2) whether a disability rating in excess of 20 percent was warranted for the Veteran's back disability. See Stegall v. West, 11 Vet. App. 268 (1998). These matters have since been returned to the Board for appellate consideration. In February 2016, the Veteran testified during a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. The issue of entitlement to a compensable disability rating for bilateral hearing loss was raised by the Veteran in July 2017, but has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b)(7) (2017). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board sincerely regrets the additional delay this may cause, further development is necessary prior to the adjudication of the Veteran's claims. First, the Board notes that the Veteran's back disability was most recently assessed during VA examination in March 2016. However, the United States Court of Appeals for Veterans Claims (Court) recently held that the final sentence of 38 C.F.R. § 4.59 requires that VA musculoskeletal 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. Correia v. McDonald, 28 Vet. App. 158 (2016). As the March 2016 examination does not fully comply with the requirements of Correia and 38 C.F.R. § 4.59, a new examination is now required. It is important for the Veteran to understand this case was issued after most recent examination. Further, the Veteran's right and left sciatica disabilities were additionally evaluated during March 2016 VA examination. However, the examiner did not assess the degree of paralysis demonstrated by the Veteran as a result of his disabilities at that time. As this factor is embodied in the applicable rating criteria for disabilities of the sciatic nerve, a new VA examination is warranted at this time. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). On remand, the RO should also associate ongoing pertinent VA treatment reports with the record before the Board. 38 C.F.R. § 3.159(c)(2) (2017). Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the record all VA treatment records for the Veteran dated from March 2016 to the present. All actions to obtain the requested records should be fully documented in the record. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. If possible, the Veteran should submit any new treatment records himself. 2. Schedule the Veteran for a new VA examination to assess the current severity of his service-connected back disability. The claims folder must be provided to the examiner in conjunction with the examination, and the examiner must indicate on the examination report that such review was undertaken. All pertinent symptomatology and findings must be reported in detail in accordance with Diagnostic Code 5242-5243. All ranges of motion involving the Veteran's VA back disability should be tested, and the examiner should note if repeated range of motion testing results in additional limitation of motion, or in functional loss, or there is weakened movement, excess fatigability, or incoordination attributable to the Veteran's disability, expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. In order to comply with the Court's recent precedential decision in Correia v. McDonald, the examiner must test and record the range of motion in active motion, passive motion, weight-bearing, and nonweight-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 why that is so. Furthermore, an opinion must be given as to whether any pain associated with the Veteran's back disability could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss due to pain on use or during flare-ups. The examiner should also report the total duration of incapacitating episodes during the past 12 months as due to the Veteran's back disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important "that each disability be viewed in relation to its history [,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available for review. 3. Schedule the Veteran for a new VA examination to assess the current severity of his service-connected right and left sciatica. The examiner must explicitly indicate whether the Veteran's disabilities result in complete or incomplete paralysis of any nerve. The specific nerves involved must be identified. If incomplete paralysis is found, the examiner must state whether the incomplete paralysis is best characterized as mild, moderate, or severe; with the provision that wholly sensory involvement should be characterized as mild, or at most, moderate. 4. Readjudicate the claims on appeal. If any of the benefits sought remain denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period in which to respond. Then, return the appeal to the Board. 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. §§ 5109B, 7112 (2012). JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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).