Citation Nr: 18147912
Decision Date: 11/06/18	Archive Date: 11/06/18

DOCKET NO. 16-42 888
DATE:	November 6, 2018
REMANDED
Entitlement to an initial rating in excess of 10 percent for a low back disability is remanded.
Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU) is remanded.
REASONS FOR REMAND
The Veteran had active military service from February 1998 to October 2001.
This matter comes to the Board of Veterans’ Appeals (Board) on appeal from December 2014 and June 2015 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). 
1. Service Connection – Low Back Disability 
The Board notes that in a recent decision the United States Court of Appeals for Veterans Claims (Court) found that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  In other words, if there is not a discussion of those measurements in a VA examination report, the examination is inadequate, unless the examiner determines that those range of motion testing listed could not be conducted.  Correia v. McDonald, 28 Vet. App. 158 (2016).  A review of the record shows that the Veteran was most recently afforded a VA examination for her low back disability in July 2016.  A review of that examination report fails to show findings that are consistent with the holding in Correia.
Therefore, the Veteran should be afforded a new VA examination to determine the current level of severity of all impairment resulting from her service-connected low back disability.
2. TDIU
The Board notes that the issue of entitlement to a TDIU is inextricably intertwined with the claim of entitlement to an increased rating for a back disability.  Harris v. Derwinski, 2 Vet. App. 180, 183 (1991).  Hence, a determination on the claim for TDIU should be deferred pending final dispositions of the claim currently on appeal.
The matters are REMANDED for the following action:
1. Identify and obtain any pertinent, outstanding VA and private treatment records and associate them with the claims file.
2. Then, schedule the Veteran for a VA examination by an examiner with sufficient expertise to determine the current level of severity of all impairment resulting from her service-connected low back disability.  The claims file must be made available to, and reviewed by the examiner.  All indicated tests and studies must be performed.  The examiner must provide all information required for rating purposes.
In assessing the severity of the low back disability, the examiner should test for pain on both active and passive motion, in weight-bearing and nonweight-bearing.
3. Confirm that the VA examination report comports with this remand, and undertake any other development found to be warranted.
4. Then, readjudicate the issues on appeal.  If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response.  Then, return the case to the Board.
 
Kristin Haddock
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Mariah N. Sim, Associate Counsel