Citation Nr: 1802090 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-20 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for intervertebral disc syndrome, lumbar spine. 2. Entitlement to an initial disability rating in excess of 20 percent for degenerative arthritis of the right ankle. 3. Entitlement to an initial disability rating in excess of 10 percent for intervertebral disc syndrome, left lower extremity. 4. Entitlement to an initial disability rating in excess of 10 percent for intervertebral disc syndrome, right lower extremity. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Diaz-Ferguson, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1985 to November 1990. This matter comes before the Board of Veterans' Appeals (Board) from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran was scheduled for a Board hearing at the Central Office in Washington, DC in October 2017. He was notified in an August 2017 letter mailed to his address of record. The Veteran failed to appear for his scheduled hearing, and neither he nor his representative submitted a request for postponement of the hearing. As such, the matter will be adjudicated as though the hearing request had been withdrawn. 38 C.F.R. § 20.702 (d). Briefly, the Board notes the RO, in the April 2010 rating decision on appeal, granted service connection for intervertebral disc syndrome of the lumbar spine, degenerative arthritis of the right ankle, and peripheral neuropathy of the right and left lower extremities. In March and April 2011, respectively, the Veteran submitted informal and formal claims for increase for the above-noted disabilities. As both the informal and formal claims for increase were submitted within a year of the April 2010 rating decision, the issues are characterized as claims for increased initial disability ratings. REMAND The Board finds additional development is required before the Veteran's claims are decided. The Board initially notes that correspondence dated April 2015 was received at the VA from the Veteran's private attorney which was representing him in a claim for Social Security Disability and Medicare health insurance benefits. This correspondence indicated that the Veteran had a pending hearing with the Social Security Administration (SSA) in June 2015. There is no indication in the record that any attempts have been made to obtain records in conjunction with the Veteran's claim for SSA disability benefits and, indeed, his SSA records are not currently in the claims file. Therefore, on remand, any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). Lumbar Spine and Bilateral Lower Extremities The Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In a recent decision, Correia v. McDonald, 28 Vet. App. 158 (2016), the Court determined that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to 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. While the spine is not a paired joint such that range of motion measurements for the opposite undamaged joint are not necessary, under Correia there is a need for testing for pain on both active and passive motion and, if possible, when weight-bearing and nonweight-bearing. Further, in another recent decision, Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court explained that VA examiners must do all that can be reasonably done to become informed about a veteran's reported musculoskeletal flare-ups prior to providing an opinion on functional loss during flares. Specifically, the Court found an examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, before concluding an assessment of the functional loss during flares could not be provided without resorting to speculation. Here, the Veteran most recently underwent a spine examination in June 2011. However, the VA examiner failed to conduct Correia compliant testing. Based on the foregoing insufficiencies, a remand is required in order to obtain an adequate examination. Additionally, the Board notes the issues of an increased disability rating for intervertebral disc syndrome of the right and left lower extremities are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (finding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the two claims are inextricably intertwined). As such, a new examination to assess the current severity of the intervertebral disc syndrome in the lower extremities is warranted. Right Ankle With regard to the Veteran's right ankle claim, the Board notes the Veteran last underwent a VA examination of his right ankle in June 2011, more than six years ago. Since then, the Veteran has submitted medical records and statements essentially asserting that his condition has worsened. As such, the issue must be remanded for a new VA examination. See 38 U.S.C. § 5103A (d) (2014); 38 C.F.R. § 3.159 (c)(4) (2017). See also Snuffer v. Gober, 10 Vet. App. 400 (1997). On remand all relevant ongoing medical records should be obtained. 38 U.S.C. § 5103A (c); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Request the SSA to provide copies of any records pertaining to the Veteran's application for SSA disability benefits, to include any medical records obtained in connection with the application. Any materials obtained should be associated with the Veteran's VA claims folder. 2. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If it is deemed any pertinent records do not exist, or that additional attempts to obtain these records would be futile, the record should be annotated to reflect such, to specifically include a formal finding of unavailability, and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 3. Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected thoracolumbar spine and lower extremities disabilities. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes any required testing is not necessary, he or she should be directed to clearly explain why that is so. 4. The Veteran should be afforded a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected right ankle degenerative arthritis. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing of ankle, as well as weight-bearing and nonweight-bearing range of motion assessments, with comparison to any opposite undamaged joint. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes any required testing is not necessary, he or she should be directed to clearly explain why that is so. If the examiner is unable to conduct the required testing or concludes the required testing is not necessary, he or she should clearly explain why that is so. 5. Undertake any other development determined to be warranted, and then readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See 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 (2014). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (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).