Citation Nr: 1803718 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-08 856 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial rating in excess of 20 percent prior to September 9, 2016, and in excess of 40 percent thereafter, for degenerative arthritis of the spine and intervertebral disc syndrome (IVDS) (previously rated as thoracolumbar scoliosis, strain and degenerative disc disease). WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from July 1987 to June 1988 and from May 1992 to June 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the VA Regional Office (RO) in Salt Lake City, Utah. In October 2014, the Veteran and his wife testified as to this claim at a Central Office hearing conducted before the undersigned. In August 2016, the Board remanded this claim as well as a claim for service connection for sleep apnea. In a November 2016 rating decision, service connection for sleep apnea was granted. As such, that issue is no longer on appeal. The Veteran's lumbar spine disorder was also increased to 40 percent disabling and recharacterized from thoracolumbar scoliosis, strain and degenerative disc disease to degenerative arthritis of the spine and IVDS. The Board also referred the issues of increased ratings for upper radicular group incomplete paralysis with carpal tunnel syndrome and cervicobrachial syndrome of the bilateral upper extremities, sciatica of the bilateral lower extremities, and cervical strain that were raised by the record in the Veteran's October 2014 testimony and November 2014 brief. As these issues still have not been adjudicated by the Agency of Original Jurisdiction (AOJ), they again are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Board remanded this claim to provide the Veteran a VA examination in accordance with Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran was afforded a VA back conditions examination in September 2016. The examination report reflects joint testing for pain on active motion, but not for passive motion, in weight-bearing and nonweight-bearing. As the examination does not comply with Correia as instructed by the Board, another remand is necessary. Accordingly, the case is REMANDED for the following action: 1. In accord with the provisions of 38 C.F.R. § 3.159(c)(1), make efforts to obtain all records identified by the Veteran. 2. Afford the Veteran a new VA spine examination, with an examiner who has reviewed the claims file. This examiner must address all subjective complaints and objective symptoms of the degenerative arthritis of the spine and IVDS. All findings and opinions must be included in a typewritten report. The examiner should: i) Address range of motion, painful motion (and at what point it starts), additional loss of motion after repetitions, and functional loss due to pain. This information must be derived from joint testing for pain on both active and passive motion, in weight-bearing, and nonweight-bearing. The examination report must confirm that all such testing has been made and reflect those testing results. ii) Discuss any associated ankylosis (favorable or unfavorable) of the Veteran's entire spine, as well as the frequency (in the past 12 months) of any incapacitating episodes. See 38 C.F.R. § 4.71a, Note 1 following Diagnostic Code 5243 (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). iii) Discuss any associated objective neurologic abnormalities that are the result of the Veteran's service-connected thoracolumbar spine disability, specifically to include any bowel or bladder dysfunction. The examiner should identify any nerve(s) affected and determine if that symptomatology is best characterized as "slight," "moderate," "moderately severe," or "severe" incomplete paralysis or complete paralysis. 3. After the completion of the instructions of paragraphs 1 and 2 and any other development deemed necessary, furnish the Veteran with a Supplemental Statement of the Case and give him an opportunity to respond before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on this matter. 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). _________________________________________________ A.C. MACKENZIE 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).