Citation Nr: 18140900
Decision Date: 10/09/18	Archive Date: 10/09/18

DOCKET NO. 16-08 392
DATE:	October 9, 2018
REMANDED
Entitlement to a rating in excess of 20 percent for degenerative disc disease, L5-S1 is remanded.
REASONS FOR REMAND
The Veteran had active service from May 1984 to March 1988.
The Board notes that, in a February 2016 rating decision, the RO granted service connection for left and right lower extremity radiculopathy, with 10 percent and 20 percent ratings, respectively.  The Veteran was notified in June 2016 and did not submit a disagreement on the assigned evaluations concerning radiculopathy. As such, these separate ratings concerning the radiculopathy of the lower extremities are not in appellate status and therefore are not before the Board.
Entitlement to a rating in excess of 20 percent for degenerative disc disease, L5-S1, is remanded.
The Veteran contends that his service-connected spine disability has worsened in severity since his last VA examination in 2016. See March 2016 VA Form 9. Additionally, the examinations of record do not fully comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements.
In addition, the Board notes that when a Veteran has appointed a representative, the RO must afford that representative the opportunity to execute a VA Form 646, Statement of Accredited Representative in Appealed Case, prior to certification of the appeal to the Board. The May 2016 VA Form 8, Certification of Appeal, which initially certified the claim on appeal to the Board, does not reflect a VA Form 646 from the Kentucky Department of Veterans Affairs is of record. The absence of a VA Form 646 indicates that the Veteran was not afforded his full right to representation during all stages of the appeal. 38 C.F.R. § 20.600. As such, on remand, the Kentucky Department of Veterans Affairs must be given an opportunity to offer a written argument on the Veteran’s behalf, and this argument must be considered by the RO. 
The matter is REMANDED for the following actions:
1. Schedule the Veteran for an examination of the current severity of his degenerative disc disease. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to his degenerative disc disease alone and discuss the effect of the Veteran’s degenerative disc disease on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
2. Afford the Veteran’s representative, Kentucky Department of Veterans Affairs, the opportunity to file a VA Form 646, Statement of Accredited Representative in Appealed Case, including arguments in support of the claim on appeal before the case is returned to the Board for further appellate review. The opportunity afforded, and any reply received, must be documented in the claims file.

 
K. PARAKKAL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	R. Williams, Counsel