Citation Nr: 1802428 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 12-23 842 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to an initial rating in excess of 10 percent for L5-S1 disk herniation. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which granted service connection for L5-S1 disk herniation and assigned a 10 percent disability rating effective December 21, 2007. In May 2015, the Veteran testified by videoconference from the RO in Boston, Massachusetts before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The case was remanded by the Board in July 2015 for additional development and consideration. Unfortunately, for the reasons discussed below, the claim requires still further development. REMAND Although the Board sincerely regrets the further delay, a remand is required in this case to pursue additional development to ensure that there is a complete record upon which to decide the Veteran's claim, so that he is afforded every possible consideration. A new VA examination must be provided to comply with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The United States Court of Appeals for Veterans Claims (Court), 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 weightbearing and non-weightbearing and, if possible, with range of motion measurements of the opposite undamaged joint, or an explanation as to why such testing is not warranted or not possible. See Correia, 28 Vet. App. at 158. The June 2015 VA examination report does not specify that passive range of motion testing was performed, or whether such testing was considered not warranted or not possible. Additionally, VA examiners are required to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. Sharp, 29 Vet. App. at 32. While it was noted the Veteran did not report flare-ups during the VA examination in June 2015, the Veteran reported flare-ups in the May 2015 videoconference hearing, flare-ups were noted in an October 2013 VA examination, the Veteran reported varied back pain in June 2009 correspondence, and his back pain was noted to vary in intensity during a VA examination in June 2008. VA examiners are also required to estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran's own statements. Sharp, 29 Vet. App. at 34-35. If an estimate cannot be provided without resort to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large, or insufficient knowledge of the specific examiner. Id. at 36. In this case, the June 2015 VA examination report does not provide the necessary information regarding flare-ups, as specified above. Although the examination was not performed during a flare-up and the Veteran did not report flare-ups at the time of the examination, it is not apparent why the examiner could not estimate additional functional loss based on the Veteran's statements describing the flare-ups, or why the available information in the file was not sufficient to permit such an estimate. Further, in accordance with the July 2015 Board remand the RO wrote to the Veteran in an attempt to obtain his private treatment records, to include from Dr. Terry Goldstrum. See RO Letter to the Veteran, dated November 3, 2015. The Veteran returned to the RO a signed Authorization and Consent to Release Information Form (VA Form 21-4142) for VA to obtain his records, but the form was incomplete. See December 2015 VA Form 21-4142. The Veteran should be afforded an additional opportunity to identify any relevant treatment records and to furnish VA with the necessary authorization to request treatment records on his behalf or to submit these records himself, to specifically include treatment records from Dr. Terry Goldstrum. Any updated VA treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain the Veteran's updated VA treatment records. 2. Contact the Veteran and obtain the provider name, address, and approximate date of treatment for any additional treatment records that he would like VA to obtain, including private treatment records from Dr. Terry Goldstrum. Obtain all records adequately identified by the Veteran, and for which the Veteran has signed the appropriate releases, and associate them with the claims folder. If any identified records are not obtainable (or none exist), the Veteran should be notified and the record clearly documented. 3. After the above has been completed, arrange for a new VA examination to assess the current severity of the Veteran's L5-S1 disk herniation. The Veteran's entire claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner. The examination report must reflect that such a review was undertaken. The examination should include any necessary diagnostic testing or evaluation. Range of motion testing in accordance with Correia: In the examination report, the examiner must include all of the following: (a) Active range of motion testing results. (b) Passive range of motion testing results. (c) Weightbearing range of motion testing results. (d) Non-weightbearing range of motion testing results. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or nonweightbearing), must be specified. Flare-ups (Sharp): The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran's own statements, is not sufficient to make such an estimate. The examiner is advised of the following: * During the May 2015 videoconference hearing, the Veteran provided that he experiences flare-ups with his back 1-2 times per month depending on how active he is at that time. * The October 2013 VA examination noted the Veteran experiences daily flare-ups of pain, weakness, and fatigue. The Veteran reported an additional loss of range of motion of 50 percent during a flare-up. * In June 2009 correspondence the Veteran advised that the pain in his back and leg varies and that he cannot ride in a motor vehicle for long periods of time without having to stop to stretch and move. * The June 2008 VA examination noted that the Veteran's back pain varies in intensity. 4. Next, review the claims file and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action must be implemented. 5. After the above development is completed, and any other development that may be warranted based on any additional information or evidence received, readjudicate the claim on appeal. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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. §§ 5109B, 7112 (2012). _________________________________________________ P.M. DILORENZO 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).