Citation Nr: 1804724 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-19 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an increased initial disability rating for degenerative disc disease of the lumbar spine with bulging/herniated discs at L4-5, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Santiago, Counsel REMAND The Veteran served on active duty from March 1986 to July 2009; he had an earlier period of active duty for training (ACDUTRA) from March 1985 to September 1985. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for the lumbar spine disability with a noncompensable (zero percent) rating effective July 30, 2009. In a December 2009 rating decision, the RO increased the noncompensable rating to 10 percent effective July 30, 2009. In a March 2014 rating decision, the RO increased the 10 percent rating to 20 percent effective July 30, 2009. Although a higher rating has been assigned, the increased rating matter remains in appellate status as the maximum rating has not been assigned. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). In March 2017, the Veteran testified at a Board video conference hearing before the undersigned Veterans Law Judge. At the Board hearing, the Veteran contended that his lumbar spine disability had worsened since a February 2014 VA examination. Therefore, the Board finds that he should be afforded a new VA examination on remand, to include consideration of any relevant records that the Board is requesting. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). While VA examinations were conducted in October 2009 and February 2014, the new VA examination should assess the current severity of the Veteran's lumbar spine disability, to consider the concerns discussed below. According to a September 20, 2007, VA treatment record and the Veteran's Board hearing testimony, he sought treatment from a private chiropractor and/or physical therapist. However, medical records of such treatment are not currently associated with the claims file, and thus, such records should be obtained on remand as they may be relevant to the instant appeal. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Ongoing VA treatment records should also be requested if they exist. Additionally, the Board finds that a remand is warranted per the recent precedential decisions of Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing (if applicable) and, if possible, with the range of the opposite undamaged joint) and Sharp v. Shulkin, 29 Vet. App. 26 (2017) (outlining VA examiners' obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups). Accordingly, the case is REMANDED for the following actions: 1. Request updated VA treatment records. 2. Ask the Veteran to provide the names, addresses, and approximate dates of treatment of all providers, who treated the Veteran for his service-connected lumbar spine disability. After securing any necessary releases, request relevant records identified which are not duplicates of those contained in the claims file. Specifically, request private chiropractor and/or physical therapy records. If any requested records are unavailable, then the file should be annotated as such, and the Veteran should be so notified. 3. After associating the above records, if any, with the claims file, schedule the Veteran for a VA examination to determine the current severity of the Veteran's service-connected lumbar spine disability, to include specific findings regarding pain on range of motion testing and estimation of functional loss, per Correia and Sharp. After reviewing the Veteran's claims file and eliciting the history of the Veteran's symptoms, to include any symptoms and functional impact that he experiences during flare-ups of this disability, the examiner should conduct a relevant clinical examination. Specifically, the Veteran should be tested for pain in both weight-bearing and nonweight-bearing, and on both active and passive motion. If such testing cannot be performed, then the examiner should explain why. If the examination is not conducted during a flare-up, the functional impact of a flare-up should be estimated based on the Veteran's reports. If such estimate cannot be provided, then the examiner should explain why. The examiner should also provide findings regarding the severity of any radiculopathy associated with the lumbar spine disability. 4. Finally, after the development requested above has been completed to the extent possible, and any additional development deemed necessary is accomplished, readjudicate the appeal. If the benefit sought is not granted in full, then furnish the Veteran and his representative with a supplemental statement of the case and give them an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if 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 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. _________________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, only a decision of the Board 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).