Citation Nr: 18152448 Decision Date: 11/23/18 Archive Date: 11/21/18 DOCKET NO. 13-34 869 DATE: November 23, 2018 REMANDED Entitlement to a rating in excess of 40 percent for lumbar spine disability, status post anterior discectomy and interbody fusion at the L5-S1 level, with recurrent lumbar radiculopathy (hereinafter lumbar spine disability), from March 7, 2011, is remanded. REASONS FOR REMAND The appellant served on active duty in the U.S. Navy from September 1978 to November 1981 and from March 1983 to April 1996. This matter originally came before the Board of Veterans’ Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, which, in pertinent part, granted service connection for a lumbar spine disability and assigned an initial 20 percent rating, effective August 15, 2007. In a December 2011 rating decision, the RO increased the rating for the appellant’s lumbar spine disability to 40 percent, effective March 7, 2011. The appellant was afforded a hearing by videoconference before the undersigned in April 2017. A transcript is of record. In an October 2017 decision, the Board determined that (1) a rating in excess of 40 percent for the appellant’s lumbar spine disability was not warranted from March 7, 2011; and (2) an effective date of June 10, 2005, for the award of service connection for the appellant’s lumbar spine disability was warranted. In addition, the Board remanded the issue of entitlement to an initial rating in excess of 20 percent for the period from June 10, 2005, to March 6, 2011. The appellant appealed the Board’s October 2017 decision to the U.S. Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, in July 2018, the appellant’s then-attorney and a representative of VA’s Office of General Counsel filed a Joint Motion for Partial Remand. In a July 2018 order, the Court granted the motion, vacated that part of the Board’s October 2017 decision which determined that a rating in excess of 40 percent for a lumbar spine disability from March 7, 2011, was not warranted, and remanded the matter for readjudication. In such Joint Motion, the parties agreed that the appellant was to be afforded a compensation and pension examination which complied with the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016), as there was no indication that weight-bearing range of motion was tested during the June 2011 and August 2013 VA examinations. See Joint Motion, 2-3. The parties also agreed that the Board failed to adequately explain why a separate rating for radiculopathy, or other associated neurologic disability, was not warranted. See Joint Motion, 3-4. Thus, the Board will remand this matter in order to afford the appellant a compensation and pension examination which complies with the Court’s holding in Correia and also addresses the appellant’s reported radicular symptomatology. As the record reflects that the RO is still taking action on the issue of entitlement to an initial rating in excess of 20 percent for the period from June 10, 2005, to March 6, 2011, that issue will be the subject of a future Board decision, if otherwise in order. The matter is REMANDED for the following action: 1. Associate any outstanding VA medical records with the claims file. 2. Schedule the appellant for an examination to clarify the severity and manifestations of his service-connected lumbar spine disability. Access to the appellant’s electronic VA claims file should be made available to the examiner for review in connection with the examination. After examining the appellant and reviewing the record, the examiner should specifically delineate all pathology and symptoms attributable to the service-connected lumbar spine disability, to include radiculopathy or other neurologic disability. The examination report should include the range of motion of the lumbar spine in degrees. The examiner must, to the extent practicable, specifically measure both active and passive range of motion, in weight-bearing and nonweight-bearing, as required by 38 C.F.R. § 4.59. If any such testing cannot be performed on the joint at issue, he or she should state so and provide an explanation. Additionally, the examiner should comment on the extent of any functional impairment resulting from painful motion, weakness, fatigability, and incoordination. If feasible, this determination should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. A clear rationale for all opinions must be provided. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the appellant, to what extent, if any, such flare-ups affect functional impairment. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel