Citation Nr: 18154989 Decision Date: 12/03/18 Archive Date: 12/03/18 DOCKET NO. 11-01 995 DATE: December 3, 2018 REMANDED Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2006 to November 2009. He was awarded the Combat Action Badge. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2016, the Board granted entitlement to an initial rating of 20 percent, but no higher, for the degenerative disc disease of the lumbar spine. The Veteran subsequently appealed the June 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). In February 2018, the Court issued a Memorandum Decision that vacated the Board’s June 2016 decision except to the extent it made a favorable determination to grant a 20 percent rating and remanded the matter to the Board. In October 2018, the Veteran submitted additional treatment records in support of his appeal. He requested that his case be remanded to the agency of original jurisdiction (AOJ) for review of this additional evidence in an October 2018 submission. Entitlement to a rating in excess of 20 percent for a degenerative disc disease of the lumbar spine is remanded. The Court has determined that a remand is necessary in order to afford the Veteran an adequate VA examination to determine the current nature and severity of his lumbar spine degenerative disc disease. In this regard, the Court opined that the Board erred in accepting the 2009 and 2015 examinations as adequate because neither complied with Correia v. McDonald, 28 Vet. App. 158, 168-170 (2016), specifically, the duty to test spine range of motion in weight-bearing position. As such, an adequate VA examination must be obtained that adheres to § 4.59, considers the Veteran’s medical history, and describes his disability in sufficient detail to allow for a fully-informed decision. The Veteran should also be asked to furnish, or to furnish an authorization to enable the VA to obtain, any additional private treatment records from providers who treated him for his claimed disorders. The matter is REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Schedule the Veteran for a VA examination to determine the nature and severity of the lumbar spine degenerative disc disease. The examiner should note all relevant pathology, and all indicated tests including x-rays, should be conducted. The Veterans record and a copy of this remand must be provided to the examiner for review upon examination and the examination report must reflect review of these items. The examiner should identify and describe in detail the nature and severity of all current manifestations of the Veteran's service connected lumbar spine degenerative disc disease. The examiner should conduct range of motion testing of the lumbar spine, specifically noting whether –upon repetitive motion of the Veterans lumbar spine—there is any pain, weakened movement, excess fatigability or incoordination on movement, and whether there is likely to be additional range of motion loss due to pain on use including during flare-ups, weakened movement, excess fatigability or incoordination. The examiner should specifically address the spine range of motion in a weight-bearing position. The examiner should also describe whether pain significantly limits functional ability during flare-ups or when the lumbar spine is used repeatedly. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. Further, the examination must comply with the requirements of 38 C.F.R §§ 4.40 and 4.59, and the medical examiner must express an opinion on whether pain could significantly limit functional ability and such 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. The examiner should identify any neurological pathology related to the service-connected lumbar spine disability and fully describe the extent and severity of those symptoms, including a statement of which nerves are involved and the extent of the impairment. The examiner should specifically indicate whether the Veteran has bowel or bladder impairment, erectile dysfunction, and/or bilateral lower extremity radiculopathy as a result of his back disability. Also, the examiner should document the number of weeks, if any, during the past 12 months that the Veteran has had “incapacitating episodes,” defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The rationale for any opinion offered must be provided. KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Pierce, Associate Counsel