Citation Nr: 1804940 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 16-27 556 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for sciatica of the bilateral lower extremities. 2. Entitlement to an initial disability rating in excess of 10 percent for lumbar strain with degenerative changes, prior to November 26, 2012; in excess of 20 percent, for the period from November 26, 2012 to April 18, 2014; and in excess of 10 percent, from April 18, 2014. 3. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Veteran represented by: Mary Anne Royle, Attorney at Law ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from January 1964 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an April 2016 rating decision, the RO staged the initial disability rating for lumbosacral strain with degenerative changes, assigning a 10 percent rating, from May 31, 2007; a 20 percent rating, from November 26, 2012; and a 10 percent rating from April 18, 2014. As the ratings do not satisfy the appeal in full, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). The appeal is REMANDED to the RO. VA will notify the Veteran if further action is required. REMAND The Veteran seeks initial ratings higher than currently assigned for his service-connected lumbosacral strain with degenerative changes. Although the Veteran was afforded a VA examination in March 2016 with respect to the severity of his lumbar spine disability, more detailed range of motion findings and findings regarding functional loss must be obtained prior to a decision, per the recent precedential decision in Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include tested 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). See also 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). In addition, the Board notes that section 3A. of the March 2016 VA examination report reflects normal range of motion noting that although there was pain on motion, it did not result in functional loss. However, in section 3C. of the report, pain on motion was reported to result in decreased motion. In view of the foregoing, the March 2016 VA examination is not completely adequate. As such, a new VA examination is also warranted to resolve this discrepancy. Prior to the examination, any outstanding records of pertinent medical treatment must be obtained and added to the record. The claim for a TDIU is intertwined with the increased rating claim. Thus, it will also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Lastly, in May 2017, the Veteran filed a notice of disagreement (NOD) with the denial of service connection for sciatica of the bilateral lower extremities in a December 2016 rating decision. In June 2017, the RO issued a response to the Veteran's May 2017 NOD and is likely addressing this matter; however, a statement of the case (SOC) as to this claim has not yet been issued, which is the next required step. See 38 C.F.R. § 19.9 (c). This should be accomplished on remand. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. Issue a SOC with respect to entitlement to service connection for sciatica of the bilateral lower extremities. The issue is to be certified to the Board only if a timely substantive appeal is received. 2. Obtain VA treatment records dated since 2016. 3. Thereafter, schedule a VA examination by an appropriate medical professional to assess the current severity of the Veteran's service-connected lumbar spine disability, to include specific findings regarding pain on range of motion testing and an estimation of functional loss, per Correia and Sharp. After reviewing the Veteran's claims file and eliciting the history of the Veteran's lumbar spine symptoms, to specifically include any symptoms and functional impact that he experiences during flare-ups, the examiner should conduct a relevant clinical examination. Specifically, the Veteran's lumbar spine should be tested for pain in both weight-bearing and nonweight-bearing positions, and on both active and passive motion. 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, in terms of additional degrees of limitation of motion, to include whether any flare-ups result in unfavorable ankylosis. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. Any associated neurologic abnormalities should be reported. A rationale for all opinions expressed should be provided 4. Finally, readjudicate the issues on appeal. If the benefits sought remain denied, issue a Supplemental Statement of the Case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the 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. _________________________________________________ S. BUSH Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).