Citation Nr: 1803485 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 08-33 451 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an initial rating in excess of 10 percent prior to September 19, 2016, and in excess of 20 percent from September 19, 2016, for a low back disorder with degenerative disc disease (DDD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. Neal, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1973 to September 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Montgomery, Alabama, Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2012 and October 2014, the Board remanded the matter for further development of the evidence. The issues of entitlement to an effective date prior to February 28, 2013, for a 50 percent rating for headaches; entitlement to an effective date prior to October 23, 2012, for a 20 percent rating for left lower extremity radiculopathy; and entitlement to an effective date prior to February 28, 2013, for the grant of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) have been raised by the record in a December 2017 appellate brief, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the issues, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). REMAND Unfortunately, another remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that she is afforded every possible consideration. In Correia v. McDonald, 28 Vet. App. 158, 170 (2016), the Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain ROM testing be conducted whenever possible in cases of joint disabilities. The Court specified that VA examination reports should record the results of range of motion (ROM) testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. An examination must specifically state at which degree of motion any pain begins. If a test is not conducted, the examination should explain why such test was not necessary. Pursuant to the Board's October 2014 remand, the Veteran underwent two VA examinations to evaluate the severity of her service-connected low back disorder with DDD. See September 2016 Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire; December 2017 (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. In the December 2017 examination report, the examiner noted that the Veteran declined repetitive-use testing due to pain. However, it is not clear in the report why tests for pain in passive motion and nonweight-bearing were also not conducted. The examiner merely indicated that the tests either could not be performed or were not medically appropriate and did not provide further explanation. Similarly, the September 2016 VA examination did not include testing for pain in passive motion and nonweight-bearing or an explanation as to why the tests were not performed. As such, the examinations do not comply with the requirements of Correia. Additionally, both examiners noted that they were unable to speculate on the extent of loss of ROM due to the Veteran's reported flare-ups. However, they did not state whether they considered all procurable assembled data and whether their inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large. See Sharp v. Shulkin, No. 16-1385 (Vet. App. 2017). Finally, while both examinations noted pain with active motion, neither indicated at which point the pain began. This does not allow the Board to properly assess the functional impairment associated with the disability. In light of these deficiencies, a further examination is warranted to assist the Veteran in fully developing her claim. Accordingly, the case is REMANDED for the following action: 1. With any required assistance of the Veteran, obtain any outstanding VA and/or pertinent private medical records and associate them with the claims file. 2. Following completion of the above, afford the Veteran a VA examination to determine the current severity of her low back disorder with DDD. The claims folder should be made available to the examiner for review prior to the examination, and the examiner should acknowledge such review in the examination report. As part of this examination, the examiner must evaluate the range of motion for pain in both active motion and passive motion, as well as in weight-bearing and nonweight-bearing scenarios. Further, the examiner must specifically identify the points, if any, at which pain begins. If any of the tests cannot be conducted, are not medically appropriate, or are not necessary, the examiner must specifically explain why and whether there is additional evidence that would permit the necessary opinion to be made. The examiner must also note whether there are further functional limitations due to pain, weakness, fatigue and/or incoordination. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare ups. In regard to flare-ups, the examiner must comply with the requirements of Sharp. Where an examiner concludes that he or she cannot offer an opinion on a veteran's functional limitations during flare-ups without resorting to speculation, the examiner must: a. First, make it clear that he or she has considered all procurable assembled data, such as obtaining all tests and records that might reasonably illuminate the medical analysis. b. Second, explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. In this regard, it must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation of the individual examiner. A complete rationale must be given for all opinions and conclusions expressed. The examiner is advised that the Veteran is competent to report history and symptoms and that her reports must be considered in formulating the requested opinion. If the examiner rejects the Veteran's reports, the examiner must provide a rationale for doing so. Also, if the examiner cannot provide an opinion without resort to speculation, the examiner must provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. 3. Thereafter, readjudicate the issue remaining on appeal-entitlement to an initial rating in excess of 10 percent prior to September 19, 2016, and in excess of 20 percent from September 19, 2016, for a low back disorder with DDD. If the benefit sought on appeal is not granted in full, the Veteran and her representative should be issued a supplemental statement of the case and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The appellant 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 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). _________________________________________________ CAROLINE B. FLEMING 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).