Citation Nr: 1802771 Decision Date: 01/12/18 Archive Date: 01/23/18 DOCKET NO. 14-10 837A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased rating in excess of 20 percent for a low back disability. REPRESENTATION The Veteran represented by: The American Legion ATTORNEY FOR THE BOARD N. Robinson, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1961 to February 1988. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran is requesting a higher rating for his low back disability, currently rated at 20 percent disabling under diagnostic code 5237. In a November 2017 appellate brief, the Veteran's representative noted that the most recent VA back examination is over four years old and requested that the Board remand the matter to arrange a new back examination. On remand, the AOJ should arrange for the Veteran's back to be re-examined in compliance with the U.S. Court of Appeals for Veterans Claims' decision in Correia v. McDonald. Correia v. McDonald, 28 Vet. App. 158 (2016). In that decision, the Court held that VA examinations must include joint testing for pain on both active and passive motion and in weight bearing and non-weight bearing. Id. Essentially, this decision clarified the requirements that must be met with respect to orthopedic disability examinations prior to the Board finding that an examination report includes adequate evidence to adjudicate the claim. This information is necessary because the Veteran's disability rating depends on his range of motion. Accordingly, a remand is necessary to arrange a new examination that provides this information and evaluates the current severity of his low back disability. Accordingly, the case is REMANDED for the following action: 1. Obtain any updated VA or adequately identified treatment records related to the Veteran's service-connected low back disability. 2. Then schedule the Veteran for an appropriate VA examination to assess the severity of his service-connected low back disability. The claims folder and all pertinent medical records should be made available to the examiner for review. All necessary diagnostic testing should be performed. The examiner must describe all impairments of the Veteran's back disability; make determinations regarding range of motion, including any additional functional impairment; and identify any related neurological symptoms. The examiner must test active and passive range of motion, and provide weight-bearing and non-weight-bearing information, or detail why such testing is not necessary. Range of motion should be expressed in terms of degrees for active and passive motion. 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. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion caused by flare-ups of the Veteran's back disability (if the Veteran is not experiencing a flare up at the time of the examination, the examiner should ask the Veteran to describe the frequency, severity, duration, and type of symptoms she experiences during flare ups and provide an opinion based on that information). The examiner's comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc. Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss. A detailed explanation (rationale) is requested for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also request in a clarification being requested). 3. The AOJ should then readjudicate the claim. If the claim remains denied, the AOJ should issue an appropriate supplemental statement of the case and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The Veteran has the right to submit additional evidence and argument on the remanded matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). As a remand, this matter must be handled expeditiously. 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board of Veterans' Appeals can be appealed to the United States Court of Appeals for Veterans Claims. 38 U.S.C. § 7252 (2012). This remand is a preliminary order and not an appealable decision on the merits of the claim. 38 C.F.R. § 20.1100(b) (2017).