Citation Nr: 1800965 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 09-29 579 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for the service-connected lumbar spine disc herniation. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD G. Lilly, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1985 to October 1989. This case is before the Board of Veteran's Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In that rating decision, the RO granted service connection for lumbar spine disc herniation with left leg radiculopathy and assigned an initial 10 percent disability rating, effective from February 28, 2008. The Veteran disagreed with the initial rating, which is the subject of this appeal. The Board notes that in a July 2009 VA rating decision that the Veteran was awarded a separate rating for left leg radiculopathy secondary to his service-connected lumbar spine disc herniation. The Board remanded this matter in March 2016 to address the Veteran's request for a videoconference hearing. On remand, the Veteran withdrew his request for a videoconference hearing in January 2017. Therefore, the Veteran's hearing request is withdrawn and the Board can proceed in adjudicating this matter. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran last underwent a VA Thoracolumbar Spine Examination in March 2013. Since that time, the record reflects that the Veteran has reported in multiple statements to VA medical providers, that his chronic back pain has increased. See e.g., March 2017 VA medical record (Veteran reported worsened back pain); July 2017 Statement in Support of Claim (Veteran stated that he was hospitalized for four days due to pain). Accordingly, a current examination to determine the current degree of severity of Veteran's lumbar spine disability is warranted. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Moreover, since the Veteran's March 2013 VA examination, the United States Court of Appeals for Veterans Claims (Court) issued a decision in Correia v. McDonald, 28 Vet. App. 158 (2016), which held that an adequate VA examination of the joints must include testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59 (2017). During the pendency of the appeal for the Veteran's lumbar spine disability, he underwent VA examinations in June 2008, October 2011, and March 2013. These examination reports do not include all the required testing pursuant to § 4.59 and Correia. These examinations provided ranges of motion, but did not indicate whether pain was present during both active and passive range of motion, or whether pain on weight-bearing and nonweight-bearing was observed. As such, a new VA examination is needed. Moreover, the Court recently issued a decision in Sharp v. Shulkin, 29 Vet. App. 26 (2017) which is applicable to this case. In Sharp v. Shulkin, the Court held that, pursuant to VA regulations and the VA Clinician's Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment." Sharp, at 32. The Court further explained that, in the event an examination is not conducted during a flare-up, the "critical question" in assessing the adequacy of the examination was "whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares." Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). The June 2008 and March 2013 VA examination reports reflect a positive indication of flare-ups. Although the reports contain some information regarding the frequency and duration of such flare-ups, as well as certain types of functional impairment resulting therefrom, no estimation was provided regarding loss of range of motion during flares. In light of Sharp, a new examination is necessary. Additionally, all available VA and non-VA treatment records since June 2017 should be obtained. 38 U.S.C. § 5103A (a)-(c) (2012). Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain and associate any outstanding VA and private treatment records with the claims file since June 2017. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to ascertain the severity and manifestations of his service-connected low back disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is instructed to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for evaluating the Veteran's service-connected low back disability under the rating criteria. In particular, the examiner should provide the range of motion in degrees of the lower back. In so doing, the examiner should test the Veteran's 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 so in the report. The examiner should also review the June 2008, October 2011, and March 2013 and report, the same, if possible. If unable to provide these retrospective range of motions, he should state why and provide a reasoned explanation for the determination. The examiner shall inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups. ANY ADDITIONAL IMPAIRMENT ON USE OR IN CONNECTION WITH FLARE-UPS SHOULD BE DESCRIBED IN TERMS OF THE DEGREE OF ADDITIONAL RANGE OF MOTION LOSS. THE EXAMINER SHOULD SPECIFICALLY DESCRIBE THE SEVERITY, FREQUENCY, AND DURATION OF FLARE-UPS; NAME THE PRECIPITATING AND ALLEVIATING FACTORS; AND ESTIMATE, PER THE VETERAN, TO WHAT EXTENT, IF ANY, SUCH FLARE-UPS AFFECT FUNCTIONAL IMPAIRMENT. 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. THE EXAMINER SHOULD ALSO REVIEW THE JUNE 2008, OCTOBER 2011, AND MARCH 2013 EXAMINATIONS AND PROVIDE A RETROSPECTIVE OPINION AS TO THE VETERAN'S FLARE-UPS BASED ON THE AFOREMENTIONED (SHARP). IF UNABLE TO PROVIDE THIS RETROSPECTIVE TESTING, THE EXAMINER SHOULD STATE WHY AND PROVIDE A REASONED EXPLANATION FOR THE DETERMINATION. The presence of objective evidence of pain, excess fatigability, incoordination and weakness should also be noted, as should any additional disability (including additional limitation of motion) due to these factors. 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 to the examiner for review. 3. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. §§ 5109B, 7112 (2012). _________________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).