Citation Nr: 1805360	
Decision Date: 01/26/18    Archive Date: 02/07/18

DOCKET NO.  10-46 057	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to a rating in excess of 10 percent prior to January 7, 2014 and in excess of 20 percent thereafter, for a low back disability.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Dominic Jones, Associate Counsel
REMAND

The Veteran served on active duty from January 1990 to September 1996. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

This issue was previously before the Board in December 2014 and in July 2017.  In the July 2017 decision, the Board remanded the claim in order to afford the Veteran a new VA examination in accordance with the dictates of Correia v. McDonald, 28 Vet. App. 158 (2016).  For the reasons stated below, another remand is necessary.

The record reflects that notice for a VA examination was sent to the address of record of the Veteran at that time.  However, in November 2017 correspondence, the Veteran indicated that she had moved from North Carolina to California, and did not receive notice about the day and time of her VA examination appointment.  Thus, the Board finds that a VA examination pursuant to Correia is still warranted as the Veteran did not receive notice of the prior examination.  Additionally, the VA examiner has the obligation to elicit information regarding flare-ups of a musculoskeletal disability if an examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups.  See Sharp v. Shulkin, 29 Vet. App, 26 (2017).  Thus a thorough VA examination pursuant to Sharp as well as Correia should be conducted on remand.

Updated VA treatment records should also be obtained.

Accordingly, the case is REMANDED for the following actions:

1.  Obtain any updated VA treatment records and associate them with the claims file.

2.  Thereafter, schedule the Veteran for a new VA examination to assess the current severity of her service-connected low back disability.  The Veteran's claims file must be provided to the VA examiner for review.

After reviewing the Veteran's claims file and eliciting the history of her low back symptoms, the examiner should conduct a relevant clinical examination, to include range of motion testing for pain on both active and passive motion, and in both weight-bearing and nonweight-bearing positions.  If this cannot be accomplished, it should be explained why.

The examiner should also provide an estimation of the functional loss the Veteran experiences during a period of flare-ups.  If this cannot be performed, the examiner should explain why.

3.  Finally, readjudicate the appeal.  If the benefit sought remains 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 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).