Citation Nr: 1801660 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-09 937 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to an initial evaluation in excess of 10 percent for lumbosacral strain. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from January 1989 to August 2012. 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 San Diego, California. The Board notes that jurisdiction of this matter has since transferred to the RO in Chicago, Illinois. This is a paperless appeal located on the Veterans Benefits Management System (VBMS), Virtual VA paperless claims processing system, and Caseflow Reader. The Board has reviewed the electronic records maintained these systems to ensure consideration of the totality of the evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran maintains that he is entitled to an intial evaluation in excess of 10 percent his lumbar spine disability. In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) noted the final sentence of 38 C.F.R. § 4.59, which states "[t]he joints involved should be tested 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." The Court found this sentence to be ambiguous because the regulation, considered as a whole, is meant to guide adjudicators in determining the proper level of disability of joints, and if the range of motion testing listed in the last sentence is not required, it is unclear how an adjudicator could adequately rate a claimant's joint disability and account for painful motion. However, compelled by § 4.59's place in the regulatory scheme (it preceded the disability rating schedule), the Court held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The Veteran was afforded a VA thoracolumbar spine examination in August 2017. The Veteran reported flare-ups when sitting for prolonged periods of time. Upon examination, the examiner noted pain with all measurements of initial range of motion testing, and then stated there was no pain with weight bearing. The Board notes that only one set of range of motion measurements was provided and it did not specify whether this was for weight bearing or non-weight bearing. Furthermore, the examiner did not state at what point the objective evidence of pain begins. Notably, in Correia, the Court found similar range of motion testing to be inadequate. Moreover, while the Veteran complained of flare-ups of increased numbness with prolonged sitting (see August 2017 VA examination report), the examiner said he was unable to opine as to functional loss during flare-ups without resorting to mere speculation because the Veteran was not examined during a flare-up. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that examiners have to offer opinions with respect to the additional limitation of motion during flare-ups based on estimates derived from information procured from relevant sources, including a veteran's lay statements. The Court explained that an examiner must do all that reasonably could be done in order to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. In accordance with Sharp (and Correia) the Veteran should be afforded a new examination. Furthermore, the August 2017 VA examiner noted the following as additional factors contributing to disability: "Less movement than normal due to ankylosis, adhesions, etc." After this, however, the examiner noted that ankylosis was not present. The Board finds this contradictory. Remand is required to clarify this statement. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. All records obtained must be associated with the claims file. 2. After, and only after, step one above has been completed, schedule the Veteran to undergo a VA examination with an appropriate physicians to assess the current manifestations and severity of the Veteran's lumbar spine disability. The examiner must review the Veteran's claims file and elicit a full history from the Veteran regarding his symptoms of lumbar spine disability. All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail. For the lumbar spine, the examiner is asked to indicate the point during range of motion testing that motion is limited by pain. The examiner should describe in detail the presence or absence and the extent of any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner should indicate whether there is ankylosis of the spine. The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the lumbar spine. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. The VA examiner should put forth best efforts in estimating the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss based on all information procured from relevant sources regarding frequency, duration, characteristics, severity, or functional loss regarding flare-ups, including the Veteran's lay statements. If the examiner cannot provide an opinion without resorting to mere speculation, he or she should provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. The examiner should test 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. All opinions provided for each of the disabilities examined must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided. 3. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 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). _________________________________________________ K. J. ALIBRANDO 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).