Citation Nr: 18141812 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 05-27 483 DATE: October 11, 2018 REMANDED Entitlement to an increased rating in excess of 20 percent for low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1977 to August 1979. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at Board hearings before a Veterans Law Judge in June 2007 and before a then Acting Veterans Law Judge in May 2013; transcripts of those hearings have been associated with the claims file. (Parenthetically, the Board notes that the Veteran also testified before a Decision Review Officer at a local RO on the increased rating issue on appeal in May 2010.) As the increased rating issue on appeal was addressed in both the June 2007 and May 2013 hearings conducted by two separate individuals, a Board panel decision is required with respect to this common issue. The Board notes that the Veteran was informed in a March 2014 letter of his right to have a hearing before a third member of the panel. In March 2014 correspondence, the Veteran waived that right to a third hearing. The Board will therefore proceed with the above issue. With regard to the issue on appeal, in a September 2004 rating decision, the RO increased the rating for the service-connected low back disorder to 20 percent, effective July 29, 2004. In a December 2007 decision, the Board denied a rating in excess of 20 percent for the low back disability. The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (Court). In a March 2011 Memorandum Decision, the Court vacated and remanded the December 2007 Board decision as to the low back rating for further proceedings. Accordingly, in March 2012, the Board remanded this issue to the Agency of Original Jurisdiction (AOJ). The increased rating issue on appeal was most recently before the Board in July 2017. At that time, the Board, in part, remanded the issue to have the Agency of Original Jurisdiction (AOJ) obtain outstanding private physical therapy treatment reports. The requested private medical reports were received into the Veteran’s Veterans Benefits Management System (VBMS) file on October 17, 2017. (See reports, authored by Merit Health Physical Therapy, labeled as “Medical Treatment Record-Non-Government Facility and received into VBMS on October 17, 2017)). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c) (2018). 38 U.S.C. § 7107 (a)(2) (2012). The Veteran seeks an increased rating for the service-connected low back disability. The Board finds that the claim must be remanded to provide the Veteran with a VA examination that fully complies with the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016). Specifically, VA examinations for orthopedic disabilities, to include the spine, must include joint testing for pain on both active and passive motion, in weight-bearing and non-weightbearing positions and, if possible, with range of motion measurements of the opposite undamaged joint. Id. VA most recently examined the Veteran to determine the current severity of his lumbar spine in February 2018. (See February 2018 Spine Disability Benefits Questionnaire (DBQ)). Here, although the February 2018 VA examiner noted range of motion testing of the lumbar spine and found that there was no pain with weight bearing, the examiner did not note passive range of motion testing or whether there was possible pain with non-weight bearing. Id; 38 C.F.R. § 4.59. Thus, the Board finds that a remand for a VA examination of the Veteran’s lumbar spine that is consistent with the requirements outlined in Correia is necessary prior to further appellate consideration of the claim. The Board also finds that a remand is warranted to have the AOJ issue an SSOC that addresses VA treatment records received into the Veteran’s VBMS electronic record in May 2018. These records are pertinent to the issue on appeal because they disclose that the Veteran sought treatment, in part, for complaints of back pain. In an August 2018 letter to the Veteran, the Board informed him the May 2018 VA treatment records were not previously considered in a decision by the local VA RO or the Appeals Management Center (collectively referred to as the agency of original jurisdiction (AOJ)), and that he had the right to have these VA adjudicators review the VA treatment records prior to the Board’s review. He was afforded a 45-day period to waive initial RO or AOJ review of the VA treatment records, and advised that if he did not respond within that period, the Board would remand the case to the AOJ for review. As the Veteran did not waive initial RO consideration within 45-days of issuance of the Board’s August 2018 letter, the appeal must be remanded to the AOJ for issuance of an SSOC. 38 C.F.R. §§ 19.37; 20.1304 (2018). The matter is REMANDED for the following action: 1. After completing the above directives, schedule the Veteran for a VA examination to determine the severity of the lumbar spine disability. The electronic claims file must be made accessible to and be reviewed by the examiner. Any indicated tests and studies, including range of motion studies, must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The appropriate Disability Benefits Questionnaire must be utilized. The examiner should describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare up, the examiner is directed to explain why an opinion cannot be offered based on the Veteran’s descriptions of his flare ups, and other evidence on file describing any flare ups. The examiner should note the nature and severity of any objective neurological impairment that is associated with the lumbar spine disability. For each impairment noted, please indicate the nerve roots involved and the severity of the symptoms (e.g., mild, moderate, severe). The examiner should comment on the impact the Veteran’s service-connected lumbar spine disability on his ability to perform tasks in a work-like setting. THOMAS H. O’SHAY Veterans Law Judge Board of Veterans’ Appeals KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Carole Kammel, Counsel