Citation Nr: 1804503 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 12-09 933 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an increased disability rating for chronic lumbosacral strain with spondylosis (lumbar spine disability), rated as 20-percent disabling prior to August 24, 2012 and 40-percent disabling thereafter. 2. Entitlement to a rating in excess of 30 percent for degenerative joint disease of the cervical spine with fusion/decompression C3-7 (cervical spine disability) (excluding the period from September 12, 2007 to March 1, 2008 in which a 100-percent rating was in effect pursuant to 38 C.F.R. § 4.30). 3. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee (right knee disability). 4. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee (left knee disability). 5. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Minot, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1973 to April 1975, and from July 1976 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. In an October 2013 rating decision, the RO, inter alia, granted an increased 40-percent rating for the Veteran's lumbar spine disability, effective August 24, 2012, and denied entitlement to a TDIU. Although the Veteran has not filed a notice of disagreement with the denial of TDIU, the Board has jurisdiction over the claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran requested a Board hearing in his April 2012 substantive appeal. However, prior to the scheduled hearing in August 2017, he cancelled his hearing request. Thereafter, his representative submitted an Informal Hearing Presentation. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Increased Rating Claims The Veteran contends that he is entitled to increased ratings for the disabilities on appeal. On review, the Board finds that a remand is warranted, as the VA examination reports of record are inadequate in light of Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran was last provided with VA examinations in connection with his lumbar spine, cervical spine, and bilateral knee disabilities in August 2013. Since that time, the United States Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, has 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. Correia, 28 Vet. App. at 168. On review, the August 2013 VA examination reports include only active range of motion findings and do not include range of motion findings for passive range of motion for any of the claimed areas. They also do not specify whether the results are weight-bearing or nonweight-bearing. No substantive explanation is provided as to why such testing was not performed. Thus, under Correia and 38 C.F.R. § 4.59, new examinations are necessary. Additionally, the Board notes that under Sharp v. Shulkin, 29 Vet. App. 26 (2017), when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment." Sharp, at 34. The Court further explained that, in the event an examination is not conducted during a flare-up, the "critical question" in assessing the adequacy of the examination was "whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares." Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). In this case, the August 2013 VA examination reports reflect a negative indication of flare-ups of back, neck, or knee pain. If on re-examination flare-ups are indicated, however, the examiner/s should provide estimates regarding the specific loss of range of motion during such episodes. TDIU The issue of entitlement to a TDIU is inextricably intertwined with the claims addressed above. Consequently, it must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain outstanding VA medical records pertaining to the Veteran for the period from May 2013 to the present. 2. Schedule the Veteran for VA examinations to ascertain the severity of his service-connected lumbar spine, cervical spine, and bilateral knee disabilities. The examiner/s should review the claims file. After examining the Veteran and conducting any studies and/or tests deemed necessary (including range of motion testing, which would include pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with the range of the opposite undamaged joint), the examiner/s should fully describe all symptomatology and functional deficits associated with these conditions. The examiner/s is specifically asked to set forth the extent of any functional loss due to weakened movement, excess fatigability, incoordination, pain on use, swelling, deformity, or atrophy of disuse. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner/s should note that if the Veteran has flare-ups, to elicit from the Veteran, if possible, the flares' severity, frequency, duration, or functional loss manifestations. If the examiner/s 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. 3. After completing all indicated development, readjudicate the claims, including entitlement to a TDIU, in light of all the evidence of record. If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative a Supplemental Statement of the Case. The Veteran 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). These claims 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). (CONTINUED ON NEXT PAGE) _________________________________________________ YVETTE R. WHITE 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).