Citation Nr: 18150665 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-47 185 DATE: November 15, 2018 REMANDED Entitlement to an increased disability rating for intervertebral disc syndrome (IVDS) with thoracolumbar osteopenia status post laminectomy and discectomy at L5-S1 (previously diagnosed as herniated nucleus pulpous L5 with residuals of lumbar laminectomy L5-S1) in excess of 20 percent prior to June 23, 2016, and in excess of 40 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1992 to August 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA). During the pendency of the appeal, the RO issued a July 2016 rating decision which increased the disability rating to 40 percent, effective June 23, 2016. The Board notes that the Veteran’s August 2013 Notice of Disagreement (NOD) included the issue of an increased rating for hypertension. However, when the Veteran filed his September 2016 substantive appeal (VA Form 9), he limited his appeal to the issue of an increased rating for IVDS. The issue of an increased rating for hypertension is therefore not before the Board. Entitlement to an increased disability rating for IVDS is remanded. The Board finds that further development is necessary to comply with VA’s duty to assist the Veteran to obtain evidence needed to substantiate his claim. In this case, the Board recognizes that to receive a disability rating in excess of 40 percent for the period since June 2016 the record would need to reflect unfavorable ankylosis of the lumbar spine. However, the Veteran is service connected for IVDS and he could receive a higher rating for IVDS without a showing of ankylosis. Moreover, for the period from April 2012 to June 2016, the Veteran contends that his functional limitations were worse than what was shown at his April 2013 VA examination. See August 2013 NOD; September 2016 VA Form 9. Significantly, the Board notes that the record is not clear as to whether the Veteran indeed has a diagnosis of IVDS. Indeed, during the April 2013 VA examination, the examiner noted no IVDS however also noted a diagnosis of it and stated the diagnosis of IVDS remained unchanged. At the most recent VA examination of September 2016 no IVDS was noted but the prior diagnosis of IVDS was not discussed. Therefore, it is unclear as to whether there is or is not a current diagnosis of IVDS. Therefore, a new VA examination is needed to confirm whether there is an IVDS diagnosis and if so, its severity. Moreover, VA examinations must include joint testing on both active and passive motion, and in weight-bearing and non-weight-bearing circumstances, with range of motion measurements. Correia v. McDonald, 28 Vet. App. 158 (2016). Further, the United States Court of Appeals for Veterans Claims (Court) has held that with respect to flare-ups, VA examiners must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation, including by soliciting information regarding frequency, duration, characteristics, severity, or functional loss. Sharp v. Shulkin, 29 Vet. App. 26 (2017). During the April 2013 VA examination, the Veteran indicated that he experienced lumbar flare-ups which consist of radiating pain down right side when bending or lifting anything with significant weight. While the Veteran’s statements suggest that his range of motion is further restricted during flare-ups, the examiner did not provide an opinion regarding flare-ups consistent with Sharp. As the April 2013 VA examination does not reflect the considerations required by Correia and Sharp, remand for a new examination and retrospective opinion is required. The matter is REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from January 2016 to the present. 2. After the development in (1) is completed, the AOJ should arrange for an examination of the Veteran to assess the current severity of his service-connected lumbar spine disability, to include a retrospective opinion. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Specifically, the examiner must discuss whether there is a current diagnosis of intervertebral disc syndrome (IVDS). In so doing, the examiner must address the prior diagnosis of IVDS noted in the April 2013 examination. In addition, the examiner is requested to provide a current and retrospective opinion regarding the Veteran’s functional limitations and range of motion measurements as requested below, to include during flare-ups, for the period from April 2012 to June 2016. The examiner should request all necessary information for the Veteran to be able to provide this retrospective opinion. Range of motion measurements must be included for active and passive motion, and weight-bearing and non-weight-bearing circumstances for both (i) the present time, and (ii) for the period from April 2012 to June 2016, if feasible. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran, to include for the period from April 2012 to June 2016. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Further, the examiner must state whether there were any incapacitating episodes and if so, their frequency. If the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 3. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Roe, Associate Counsel