Citation Nr: 1801888 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 10-25 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial rating in excess of 20 percent for a service-connected back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Reed, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1958 to October 1961. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing in January 2017. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran asserted in his January 2017 Board hearing that his back disability had increased in severity since his October 2008 VA examination. The Veteran submitted an April 2017 Disability Benefits Questionnaire addressing the Veteran's back disability, but the April 2017 examiner did not provide any assessments of the Veteran's range of motion with respect to his back. The Veteran then underwent a May 2017 VA examination in which the examiner was asked to assess the current severity of the Veteran's back disability; however, the United States Court of Appeals for Veterans Claims (the Court) has issued directives regarding VA examinations in Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, the Court required a pain assessment in an examination in order for the examination to be adequate. Specifically, the examiner must test for pain in both active and passive motion, as well as in weight-bearing and nonweight-bearing. The May 2017 VA examiner noted that the Veteran exhibited pain in his thoracolumbar flexion range of motion, but does not appear to have assessed both the Veteran's active and passive range of motion, and does not specify which was measured in the examination, rendering the examination inadequate per Correia. The Veteran must therefore be afforded another VA examination which fully complies with Correia which tests for pain in both active and passive motion, as well as in weight-bearing and nonweight bearing. Additionally, the May 2017 examiner noted that the Veteran reported that his low back pain worsened when performing manual labor, including bending, twisting, and lifting anything more than 15 pounds, or when sitting for more than 20 minutes or walking for more than 15-20 minutes, further noting that his symptoms improved when he stopped performing those activities. The examiner then indicated that the Veteran's pain significantly limited his functional ability with repeated use over a period of time, but did not describe what these additional limitations would be, and stated he could not give a measurement in degrees of range of motion because the Veteran was not being seen after repetitive use over time. The examination report shows that no attempt at estimation of the additional functional loss was made, and no additional rationale is offered for this lack of estimation. Thus, it does not appear to the Board that the examiner adequately addressed any functional limitation of the Veteran's pain. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In light of the foregoing, the Board finds that the April 2017 examination is inadequate, and a remand is necessary in order to afford the Veteran a new VA examination that adequately addresses the current severity of his back disability. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011); see also Correia v. McDonald, 28 Vet. App. 158 (2016). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Arrange for the Veteran to undergo a VA examination by an appropriate physician to assess the current severity of his lumbar spine disability. The contents of the entire electronic claims file (in VBMS and Virtual VA) must be made available to the designated physician. All indicated tests and studies should be accomplished, the reports of such must be associated with the examination report, and clinical findings should be reported. To the extent possible, the examination report must include the results of range of motion testing on both active and passive motion and in weight-bearing and nonweight-bearing for the service-connected lumbar spine. 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 shall inquire as to periods of flare-up and additional functional loss due to repetitive use over time, and note the frequency and duration of any such incidents. Then, the examiner must estimate the effect of any functional losses during flare-ups or repetitive use over time, including due to pain, incoordination, lack of endurance, weakness, fatigability, by equating the disability experienced due to all such losses to loss of motion (stated in degrees) beyond what is shown clinically (e.g., the examiner should estimate the level of disability caused by the combined effect of all functional losses during flare-ups or due to repetitive use over time and identify the level of limited motion that would equate to such a level of disability). A rationale for any opinions rendered should be provided. 2. Then, readjudicate the issue of entitlement to an initial rating in excess of 20 percent for a service-connected back disability. If any benefit sought in a perfected appeal remains denied, issue a supplemental statement of the case before returning the matter to the Board, if otherwise in order. The Veteran 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 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). _________________________________________________ JAMES L. MARCH 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).