Citation Nr: 18153207 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 17-28 833 DATE: November 27, 2018 REMANDED The claim of entitlement to an initial rating in excess of 10 percent for lumbosacral spine degenerative joint disease (DJD) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1959 to April 1964. The procedural history as to this case includes a March 2014 Board decision. At that time, it was determined that new and material evidence had been received to reopen the previously denied claim of service connection for a lumbar spine disability. The reopened claim was remanded for examination. In a July 2014 rating decision, the Regional Office (RO) granted service connection for lumbar spine DJD as secondary to a service-connected left knee disorder. Based on VA examinations from April 2009 and April 2014, the Regional Office (RO) found that a 10 percent rating was warranted from January 23, 2009, and a 20 percent rating was warranted from April 1, 2014. In a September 2018 rating decision, it found that clear and unmistakable error (CUE) was made when service connection for lumbar spine DJD was granted on a secondary basis. Instead, service connection for the back condition should have been granted on the basis that it was aggravated by the service-connected knee disability. In doing so, the RO explained in the September 2018 rating decision, that the baseline level of severity of 10 percent should have been withheld from the initial evaluation of 20 percent. This resulted in a rating of 10 percent for the period beginning January 23, 2009. The appeal continues. The claim of entitlement to an initial rating in excess of 10 percent for lumbosacral spine DJD is remanded. Since the most recent VA examination in April 2014, additional VA records have been added to the record through 2016 showing continued treatment for DJD. In a September 2017 statement, the Veteran’s wife stated that the Veteran was in an inadequate wheelchair and that he was in great pain. Assistance by VA includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d) (2012); 38 C.F.R. § 3.159(c)(4) (2018). When medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. Colvin v. Derwinski, 1 Vet. App. 171 (1991) and Hatlestad v. Derwinski, 3 Vet. App. 213 (1992). Such is the case here. VA examination of the lumbar spine should be obtained as directed in the remand directives below. Moreover, the RO should attempt to obtain any additional treatment records. The matter is REMANDED for the following action: 1. Obtain any VA treatment notes not already of record and associate them with the claims file. Moreover, invite the Veteran to identify any additional medical providers who treated him for his low back disorder. After receiving this information and any necessary releases, contact the named medical providers and obtain copies of the related medical records which are not already in the claims folder. 2. Schedule the Veteran for a VA examination to determine the current severity of his lumbar spine disability. The Veteran’s VA claims file and a copy of this Remand should be made available to, and should be reviewed by the examiner. All indicated tests and studies should be performed and findings reported in detail. 3. The examiner should conduct the examination in accordance with the current disability benefits questionnaire, to include range of motion testing (expressed in degrees) in active motion, passive motion, weight-bearing, and non-weight-bearing consistent with 38 C.F.R. § 4.59 (2018) as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016), as well as the degree at which pain begins. 4. In addition, the examiner must address any additional functional impairment or limitation of motion due to flare-ups, even if the Veteran is not currently experiencing a flare-up. The examiner must ascertain adequate information, i.e., frequency, duration, characteristics, severity, or functional loss regarding his flares by alternative means, such as the medical treatment records and the Veteran’s lay statements. Such findings are consistent with the VA Clinician’s Guide. (Continued on the next page)   5. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, furnish to the Veteran and his representative a supplemental statement of the case (SSOC) and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Hal Smith