Citation Nr: 18152073 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-04 341 DATE: November 20, 2018 REMANDED Entitlement to an evaluation in excess of 20 percent for thoracolumbar strain (previously lumbar strain and thoracic strain, claimed as right shoulder), to include entitlement to a rating in excess of 10 percent prior to June 8, 2016, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from March 2011 to June 2014. The Board notes that since the June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) granting service connection for lumbar strain with an evaluation of 10 percent, which is the basis for the Veteran’s appeal, the Veteran’s rating evaluation has been increased to 20 percent, effective June 8, 2016. The Veteran is now seeking a rating evaluation in excess of 20 percent, which will include the issue of entitlement to a rating in excess of 10 percent prior to that date. See, October 2018 Informal Hearing Presentation. The Veteran has withdrawn his appeal for an increased rating for his left shoulder disability. See, Veteran’s October 2015 correspondence. See, January 2016 Report of General Information. Further evidence of the withdrawal of this claim is the fact that it was not addressed at his informal conference at the RO in May 2016, the certification of appeal in July 2016, or in the appellant brief filed by his representative in October 2018. While the Board regrets the delay, additional development is required before the Veteran’s claim may be adjudicated on the merits. Evaluation in excess of 20 percent for thoracolumbar strain, to include entitlement to a rating in excess of 10 percent prior to June 8, 2016 Specifically, the Board notes that while the Veteran’s claim was pending, two precedential decisions were issued which also require the Veteran’s claim to be remanded. In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that in order for an examination to be adequate, it must 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. A review of the Veteran’s last VA examination in June 2016 indicates that a new examination is warranted, in light of Correia. The Court’s recent holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017) also requires that the claim be remanded. In Sharp, the Court noted that for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Furthermore, the Court stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans,” and the examiner’s determination “should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups.” Id. at 10. Since the Veteran reported flare-ups with respect to his back during his June 2016 VA examination, but the examiner did not attempt to determine the additional range of motion loss, this constitutes additional basis for remand. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records and associate them with the Veteran’s claims file. 2. Following the receipt of any outstanding records, schedule the Veteran for a VA examination with the appropriate medical personnel in order to determine the current level of severity of his thoracolumbar strain. The Veteran’s entire claims file, to include a copy of this remand, should be provided to the examiner. Following a complete review of the record, the examiner is asked to provide the following opinion: Determine the current severity of the Veteran’s thoracolumbar strain. Report the Veteran’s range of motion for the thoracolumbar spine in degrees. In accordance with Correia, the range of motion should be tested actively and passively, in weight-bearing, nonweight-bearing, and after repetitive use. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. In providing this opinion, the examiner should consider the Veteran’s lay statements regarding his decreased range of motion. The extent of any weakened movement, excess fatigability and incoordination should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should further assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should consider all procurable and assembled data by obtaining all tests and records that might reasonably illuminate the medical analysis. This includes the Veteran’s statements regarding the extent of functional loss and additional range of motion loss during flare-ups of his condition. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.B. King, Associate Counsel