Citation Nr: 1805450 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 13-06 418 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an initial disability rating greater than 20 percent for service-connected degenerative changes associated with herniated nucleus pulposus of L5-S1. 2. Entitlement to an initial disability rating greater than 10 percent for service-connected radiculopathy of the right lower extremity. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Associate Counsel INTRODUCTION The Veteran had active service from November 2003 to March 2011. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA), Regional Office (RO), in Salt Lake City, Utah. This matter was previously before the Board in March 2015, December 2015, September 2016, and July 2017, at which time it was remanded for additional development. It is now returned to the Board. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board sincerely regrets the additional delay but finds that further development is required. In July 2017, the Board remanded the appeal for a VA examination of the lumbar spine to comply with the factors identified in Correia v. McDonald, 28 Vet. App. 158 (2016), which held that 38 C.F.R. § 4.59 requires that an adequate VA examination of the joints must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing. The Veteran was afforded a VA examination in August 2017. Although the Board acknowledges that the VA examiner attempted to comply with the requirements of Correia by noting that there was objective evidence of pain in non-weight bearing and indicating that passive range of motion could be performed or was not medically appropriate, the examiner did not fully address these factors or explain why such information could not be provided. In this regard, although the examiner stated that passive range of motion could not be performed or was not medically appropriate, the examiner did not offer an explanation as to why this was the case. Similarly, although the August 2017 examiner indicated that there was objective evidence of pain in non-weight bearing, the examiner did not provide any range of motion test results or explain why such information could not be provided. The Board finds this particularly significant because earlier in the examination, in connection with initial range of motion testing, the examiner noted that there was no evidence of pain with weight bearing. Hence, nonweight bearing range of motion may be significantly more impaired than what is shown in the examination results. In light of the above, the Board must conclude that the examination report does not comply with the factors outlined in Correia or the prior remand directives. As such, the AOJ should contact the August 2017 VA spine examiner to explain why passive range of motion could not be performed and to clarify whether range of motion of the thoracolumbar spine in non-weight bearing was performed, and if so, to provide the results of that testing. If the examiner cannot provide the missing information, an additional examination should be scheduled. In addition, the Board notes that in late November 2017, approximately two weeks after the RO issued the most recent November 2017 supplemental statement of the case, the Veteran's vocational rehabilitation folder was uploaded into VBMS. A review of these documents shows, among other things, that the Veteran was assessed for vocational impairment in March 2013, during the period under appeal. As it does not appear that this evidence has been considered in the first instance by the AOJ in connection with the issues on appeal, in particular the issue of entitlement to a TDIU, the Board finds that this should be accomplished on remand. See 38 C.F.R. §§ 19.31, 19.37(a) (2017). Accordingly, the case is REMANDED for the following action: 1. Contact the August 2017 VA spine examiner to explain why passive range of motion could not be performed and to clarify whether range of motion of the thoracolumbar spine in non-weight bearing was performed, and if so, to provide the results of that testing. If the examiner cannot provide the missing information, an additional examination should be scheduled which complies with the July 2017 Board remand directives. 2. After completion of the above, readjudicate the claims, to include consideration of the Veteran's vocational rehabilitation folder which was uploaded into VBMS in November 2017. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the appellant and his representative should be furnished a supplemental statement of the case, which addresses all of the evidence obtained after the issuance of the last supplemental statement of the case, and provided an opportunity to respond. The appellant 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). 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.A. §§ 5109B, 7112 (West 2014). (CONTINUED ON NEXT PAGE) _________________________________________________ GAYLE E. STROMMEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).