Citation Nr: 18152664
Decision Date: 11/23/18	Archive Date: 11/23/18

DOCKET NO. 12-27 355
DATE:	November 23, 2018
REMANDED
Entitlement to an initial rating in excess of 20 percent for a low back disability is remanded.
REASONS FOR REMAND
The Veteran served on active duty in the United States Army from March 1966 to August 1974.
This appeal stems from the Veteran’s disagreement with an October 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  In July 2017, the Board of Veterans’ Appeals (Board) denied the issue on appeal, and the Veteran timely appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court).  In an April 2018 Order, pursuant to a Joint Motion for Partial Remand (JMPR) filed by the parties, the Court vacated and remanded the Board’s decision.
1. Entitlement to an initial rating in excess of 20 percent for the low back disability is remanded.
The parties to the JMPR concluded the Board erred by relying on the July 2011, April 2016 and May 2016 VA examination reports, as they do not include required testing under 38 C.F.R. § 4.59 and Correia v. McDonald, 28 Vet. App. 158 (2016).  Thus, a new examination is needed on remand.  Updated records should also be secured.
The matter is REMANDED for the following action:
1. Obtain any outstanding VA treatment records.
2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records.
3. Then schedule the Veteran for a VA examination to address the current severity of the Veteran’s low back disability.  The entire claims file, including a copy of this remand and any newly obtained treatment records must be reviewed by the examiner.
The examiner should address the following:
(a) The joints involved should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing and (4) in nonweight-bearing.  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 that is so. 
(b) Please provide an opinion as to the full range of motion of the Veteran’s low back since December 2003 in (1) active motion, (2) passive motion, (3) in weight-bearing and (4) in nonweight-bearing.  If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.).
(c) Considering the Veteran’s reported history, please also provide an opinion describing functional impairment of the Veteran’s low back due to flare-ups since December 2003, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment.  If unable to opine without speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).
 
S. BUSH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Victoria L. Stephens, Associate Counsel