Citation Nr: 1802118 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-19 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a rating in excess of 20 percent for chronic lumbar strain. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Koria B. Stanton, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1975 to April 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In June 2017, the Veteran and his spouse testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. At such time, the Veteran submitted additional evidence with a waiver of Agency of Original Jurisdiction (AOJ) consideration. Furthermore, at such time, the undersigned held the record open for 90 days so that the Veteran could procure and submit additional evidence in support of the claim. Such evidence was received in August and September 2017 with a waiver of AOJ consideration. 38 C.F.R. § 20.1304(c) (2017); see also 38 U.S.C.A. § 7105(e)(1) (West 2014)); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165. The Board further observes that, in September 2017, the Veteran requested an additional period of 30 days to submit evidence. While such motion was not ruled upon, the Board is herein remanding the Veteran's claim and, as such, he will have an opportunity to submit any further evidence for consideration in his appeal. The appeal is REMANDED to the AOJ. VA will notify the Veteran 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 Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran was afforded VA examinations in October 2010 and June 2016 in connection with his claim for an increased rating for his chronic lumbar strain. Since his most recent examination in June 2016, he has alleged increased and additional symptomatology. Specifically, at his June 2017 Board hearing, the Veteran reported additional symptoms of constant bowel incontinence; occasional bladder incontinence; radiating pain into his arms and feet; muscle spasms; numbness in his legs; and erectile dysfunction. Therefore, as the evidence suggests that the Veteran's chronic lumbar strain symptomatology may have increased in severity since the June 2016 VA examination, a remand is necessary in order to schedule him for an appropriate VA examination in order to assess the current nature and severity of such service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Additionally, the Board notes that the United States Court of Appeals for Veterans Claims (Court) recently held 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. See Correia v. McDonald, 28 Vet. App. 158 (2016). Upon a review of the VA examinations conducted during the course of appeal, it does not appear that such testing was conducted, or that the VA examiners explained why such testing could not be conducted or was not necessary. Furthermore, the Court subsequently addressed 38 C.F.R. § 4.40, which states that a VA examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in such regard "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." In this regard, the Court concluded that, when a VA examiner is asked to provide an opinion as to additional functional loss during flare-ups of a musculoskeletal disability, the examiner must obtain information from the Veteran regarding the severity, frequency, duration, characteristics, and/or functional loss related to such flare-ups. The Court further concluded that, if the examination was not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. Additionally, if the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Upon a review of the October 2010 and June 2016 VA examination reports, the Board observes that, while the June 2016 VA examination addresses such aspects of the Court's holding in Sharp, the Veteran reported experiencing flare-ups at the October 2010 VA examination, but the VA examiner did not indicate whether such resulted in additional limitation of motion. Therefore, in conducting the VA examination, the examiner should address the Court's holdings in Correia, supra, and Sharp, supra, and provide retrospective medical opinions as to the findings included in the prior examinations conducted in October 2010 and June 2016. Moreover, it appears that there may be outstanding private treatment records relevant to the Veteran's claim. In this regard, a June 2017 private letter submitted by Dr. K.H. indicates that the Veteran had been seen at the Marion Pain Clinic in Ohio since 2008. Additionally, a September 2017 private letter submitted by S.D., Practice Office Manager, indicates that the Veteran had been seen at the BKC Pain Specialists LLC in Ohio since 2014. However, the private treatment records pertaining to such locations are dated in 2016 and 2017 only. Therefore, while on remand, the AOJ should attempt to obtain such treatment records. Accordingly, the case is REMANDED for the following action: 1. After obtaining any necessary updated authorization forms from the Veteran, obtain all outstanding private treatment records relevant to his chronic lumbar strain, to specifically include those from BKC Pain Specialists LLC and Marion Pain Clinic in Ohio. Make at least two (2) attempts to obtain records from any identified source. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected chronic lumbar strain. The record, to include a copy of this Remand, should be made available to, and be reviewed by, the examiner. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. Examination findings should be reported to allow for application of pertinent rating criteria for the lumbar spine. The examiner should record the range of motion of the lumbar spine observed on clinical evaluation in terms of degrees. The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If there is clinical evidence of pain on motion, or any of the other above-noted symptoms, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such results in any loss of range of motion. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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 is also requested to review the VA examinations containing range of motion findings pertinent to the Veteran's chronic lumbar strain conducted in October 2010 and June 2016. With regard to such examinations, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to do so, he or she should explain why. It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. Specifically, if the Veteran endorses experiencing flare-ups of his back disability, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. Additionally, as the Veteran endorsed flare-ups upon examination at the October 2010 VA examination, the examiner should offer an opinion as to whether additional loss of range of motion was present during a flare-up as described at such time. If the examiner is unable to do so, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. The examiner is requested to indicate whether the Veteran has intervertebral disc syndrome and, if so, the total duration of any incapacitating episodes over the past 12 months. The examiner is advised that an "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The examiner is also requested to indicate whether the Veteran's chronic lumbar strain results in any objective neurologic impairment, to specifically include radiculopathy of the bilateral lower extremities, bladder and bowel incontinence, and erectile dysfunction, and, if so, the nature and severity of such neurologic impairment. The examiner also should comment upon the functional impairment resulting from the Veteran's chronic lumbar strain. All opinions expressed should be accompanied by supporting rationale. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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 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). _________________________________________________ A. JAEGER 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).