Citation Nr: 18149369 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-46 886 DATE: November 9, 2018 REMANDED Entitlement to a compensable rating for the period beginning August 16, 2012 to November 17, 2015; in excess of 10 percent from November 17, 2015 to September 13, 2017; and in excess of 20 percent thereafter, is remanded. REASONS FOR REMAND The Veteran had active duty service from September 1989 to September 2008. The Veteran contends that his back disability warrants higher ratings than his assigned staged ratings. The evidence shows that the Veteran has received several VA examinations to determine the severity of his service-connected back disability; however, the record shows that the Veteran also sought treatment from private facilities and those records are not in evidence. In particular, the Board notes that in January 2015, the Veteran submitted medical treatment notes showing a diagnostic test of his lumbar spine from April 2014, and several physical therapy appointments scheduled in May 2014. Additionally, in his November 2015 VA examination, the Veteran reported that he went to urgent care twice in 2014; however, the Veteran’s claims file only contains records from one visit in March 2014. Furthermore, in his VA-9, the Veteran reported receiving treatment from Davis-Monthan Air Force Base in September 2016, which included an x-ray showing that his lumbar spine condition has progressed. Although the Veteran submitted what appears to be x-ray images of his lumbar spine, there are no medical treatment notes associated with the images. As these records have been identified and are relevant to the issue before the Board, VA has a duty to assist the Veteran in obtaining those records. Thus, a remand is necessary to fulfill VA’s duty to assist the Veteran in obtaining relevant medical records. Additionally, the Board notes that the Veteran’s November 2015 and September 2017 examinations appear to have some ambiguity. Specifically, the Board notes that both examiners found an additional contributing factor to the Veteran’s back disability include that of less movement than normal due to ankylosis. However, the examiners noted elsewhere in the examinations that the Veteran does not have ankylosis of the spine. The Board finds the evidence conflicting and ambiguous, thus, warranting clarification and a new examination. The matter is REMANDED for the following action: 1. Obtain any outstanding VA medical records not already of record relating to the claim. 2. Ask the Veteran to identify any private treatment related to his back disability. The AOJ should undertake appropriate development to obtain any outstanding private treatment records. The Veteran’s assistance should be requested as needed. All obtained records should be associated with the evidentiary record. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. After any records obtained have been associated with the evidentiary record, schedule the Veteran for a VA examination with an appropriate examiner to determine the severity of his service-connected back disability. The claims file must be made available to and reviewed by the examiner. The examination should include the following: a) Complete range of motion testing should be accomplished and the examiner should note the point at which there is pain on motion, if any. Active and passive range of motion testing as well as weight-bearing and non-weight-bearing testing must be conducted if applicable. If any test is not deemed warranted, such should be identified and explained. b) The examiner must indicate whether the Veteran has pain, weakened movement, excess fatigability or incoordination on movement and whether there is likely to be additional range of motion loss due to any of the following: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner must describe whether any reported pain significantly limits the function of the Veteran’s thoracolumbar spine during flare-ups or when the thoracolumbar spine is used repeatedly. Any limitation of function must be clearly identified. If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. c) The examiner should confirm there are no associated objective neurological abnormalities related to the Veteran’s back disability, including radiculopathy or IVDS. d) The examiner should confirm whether or not the Veteran has ever had ankylosis during the appeal period, if feasible. Discuss the clinical significance, if any, of earlier observations that the Veteran might have less movement due to ankylosis. e) A complete rationale for any opinion expressed must be provided. 4. Then, readjudicate the claim on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case. Allow an appropriate period of time for response. GAYLE E. STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Laffitte, Associate Counsel