Citation Nr: 18154976 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-59 477 DATE: December 4, 2018 REMANDED Entitlement to an initial rating in excess of 10 percent for thoracic and lumbar paraspinal muscle spasm is remanded. REASONS FOR REMAND The Veteran had active service in the United States Marine Corps from June 1985 to May 1989. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which, in relevant part, granted entitlement to service connection for thoracic and lumbar paraspinal muscle spasm with a 10 percent rating effective February 24, 2015. The Veteran submitted a notice of disagreement (NOD) in March 2016, contesting the assigned evaluation of the disability. A statement of the case (SOC) was issued in September 2016. The Veteran perfected a timely substantive appeal via VA Form 9 in November 2016. The Veteran was afforded the opportunity to present testimony before the Board, but did not select a hearing option in his November 2016 VA Form 9. 1. Entitlement to an initial rating in excess of 10 percent for thoracic and lumbar paraspinal muscle spasm is remanded. The Veteran underwent VA examination in July 2015. Subsequently, in his March 2016 NOD, he described his concerns regarding the examination. He stated that the examiner forced his body to make certain movements and did not consider his gait impairment. The Veteran stated that his pain had increased since the examination. Later, in the November 2016 VA Form 9, he provided a detailed description of the limitations on his daily activities due to his back. During the course of this appeal, a new precedential opinion that directly affects this case was issued. The United States Court of Appeals for Veterans Claims (Court) held that to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59 (2017) states that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” The July 2015 VA examination report does not comply with Correia. Additionally, the Veteran has alleged that his condition has worsened since the time of the July 2015 examination. Accordingly, the Board finds that a new VA examination is required. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his thoracic and lumbar paraspinal muscle spasm. (a.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. (b.) The examiner should discuss whether the Veteran suffers from an altered gait due to thoracic and lumbar paraspinal muscle spasm. (c.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)) if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jamison, Elizabeth G.