Citation Nr: 1800910 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 13-02 490 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to an increased rating for degenerative disc disease (DDD) of the lumbar spine, currently evaluated at 10 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Taylor, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1977 to October 1981 and from January 2005 to November 2005. The Veteran had periods of active duty for training with the Army National Guard in June 2002 and from January 2003 to February 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. A Notice of Disagreement (NOD) was filed in March 2013. A Statement of the Case (SOC) was issued in March 2013. A substantive appeal (VA Form-9) was filed in May 2013. Supplemental Statements of the Case (SSOCs) were issued in May 2013, December 2013, and February 2017. In August 2014, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). The transcript of the hearing is of record. The Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for further development in March 2015. In June 2015, the Veteran filed a Motion for Reconsideration of the Board's March 2015 decision, which denied entitlement to an increased rating for degenerative joint disease (DJD) of the left elbow, currently evaluated at 10 percent disabling; entitlement to service connection for a traumatic brain injury (TBI), residuals of an injury to the neck, and residuals of an injury to the abdomen; and remanded the issue of entitlement to an increased rating for DDD of the lumbar spine, currently evaluated at 10 percent disabling. The Veteran alleged that the March 2015 Board decision contained an obvious error of fact or law pursuant to 38 C.F.R. § 20.1000 (a). In its September 2015 Response, the Board dismissed the Motion for Reconsideration pertaining to entitlement to an increased rating for DJD of the left elbow, currently evaluated at 10 percent disabling; and entitlement to service connection for a TBI, residuals of an injury to the neck, and residuals of an injury to the abdomen as the Motion did not demonstrate that the Board decision contained an obvious error of fact or law. The Board dismissed the Motion for Reconsideration with regards to the issue of entitlement to an increased rating for DDD of the lumbar spine, currently evaluated at 10 percent disabling, as the Board had not rendered a final decision regarding the issue. The issue of entitlement to an increased rating for DDD of the lumbar spine, currently evaluated at 10 percent disabling is now before the Board for further appellate action. The Board reviewed the Veteran's electronic claims file which includes records in Virtual VA and Veterans Benefits Management System (VBMS) databases prior to rendering its decision. The appeal is 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 appealed issue of entitlement to an increased rating of DDD of the lumbar spine, currently rated at 10 percent disabling. The Veteran contends that he is entitled to a higher rating for his service-connected DDD of the lumbar spine. In February 2017, the Veteran was afforded a VA back (thoracolumbar spine) examination. The Veteran's lumbar spine disability was confirmed. An x-ray showed minimal generalized degenerative changes of the lumbar spine. The Veteran reported increased back pain with walking, turning, and heavy lifting. The Veteran reported receiving 3 epidural steroid injections in his lower back since 2008, flare-ups, and functional loss. The range of motion (ROM) testing revealed flexion to 80 degrees, extension to 20 degrees, right/left lateral flexion to 25 degrees, and right/left lateral rotation to 25 degrees. Pain was noted on examination on rest/non-movement. There was no evidence of pain on weight-bearing, localized tenderness, or pain on palpation of the low back. The Veteran denied having any radicular pain. There was evidence of additional loss of function or ROM after three repetitions; however, ROM was documented as normal. The examination report indicated that pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time; however ROM was normal. The physician explained that he could not determine if pain, weakness, fatigability or incoordination resulted in additional loss of ROM during flare-ups without result to mere speculation. Additional contributing factors of disability were described as less movement than normal due to ankylosis, adhesions, etc.; however, the physician endorsed "no" for evidence of ankylosis. The Veteran exhibited no evidence of guarding, muscle spasm or muscle atrophy. Muscle strength, reflex, and sensory examination results were normal. The physician rendered the clinical assessment that it is reasonable to believe that the generalized degenerative changes of the Veteran's lumbar spine is a progression of his service-connected mid/low back degenerative disc disease. The Board finds the February 2017 VA examination incomplete. The United States Court of Appeals for Veterans Claims (Court) recently held in Correia v. McDonald, 28 Vet. App. 158 (2016), 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. A review of the record evidence indicates that the February 2017 VA examination report does not include active and passive ROM findings. It also does not specify whether ROM was tested in weight-bearing or nonweight-bearing. 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 claim. As such, the Board finds that a remand is required with regard to the Veteran's appealed increased rating claim for DDD of the lumbar spine. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the level of impairment due to his service-connected DDD of the lumbar spine. The electronic claims file and copy of this Remand must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. The examiner must test and record the range of motion for the lumbar spine in active motion, passive motion, weight-bearing, and nonweight-bearing. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups of the knee. To the extent possible, the examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. In regard to flare-ups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. The examiner must also express an opinion concerning whether additional contributing factors of DDD of the lumbar spine results in less movement than normal due to anklylosis, adhesions, etc., considering that the February 2017 examination report indicated that the Veteran's lumbar spine had less movement than usual due to ankylosis, adhesions, etc.; however, the Veteran was not diagnosed with ankylosis. 2. After undertaking any other development deemed appropriate, the AOJ should re-adjudicate the claims. If the benefits sought on appeal remain denied, the Veteran and his representative should be furnished a SSOC and given the opportunity to respond thereto before the case is returned to the Board. 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). _________________________________________________ DEBORAH W. SINGLETON 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).