Citation Nr: 18155389 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-62 756 DATE: December 4, 2018 REMANDED Entitlement to an initial disability rating in excess of 10 percent for service-connected degenerative disc disease of the thoracolumbar spine with spondylolisthesis of L5-S1 is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from January 2008 to January 2013. He is a recipient of the Combat Action Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska (Agency of Original Jurisdiction (AOJ)). Regrettably, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the issues on appeal, in order to afford the Veteran every possible consideration. The Veteran is presently 10 percent service-connected for degenerative disc disease of the thoracolumbar spine with spondylolisthesis of L5-S1. He stated that his back got worse in the two years between his initial examination and his most recent one. During the VA examination conducted in May 2016, he reported that his back experiences flare ups when he sits too long; he overdoes it and then he must rest. The record, however, does not contain an examination report that complies with current legal requirements. The May 2016 examiner indicated that he was unable to opine as to whether pain, weakness, fatigability, or incoordination significantly limits the Veteran’s functional ability during flare ups without resort to mere speculation because the Veteran was not examined during a flare up. See Deluca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The United States Court of Appeals for Veterans’ Claims (Court) has recently made clear that such remarks made concerning flare-ups, without more, renders an examination inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). As the Court explained in Sharp, “the VA Clinician’s Guide makes explicit what DeLuca clearly implied: it instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans themselves.” Id. at 6. “Even when the claimant is not experiencing a flare-up at the time of the examination, a VA examiner must elicit relevant information as to the Veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the Veteran’s functional loss due to flares based on all the evidence of record-including the Veteran’s lay information-or explain why [he or] she could not do so.” Id. The Board must therefore remand to obtain an examination that complies with the directives set out in Sharp. Furthermore, subsequent to the May 2016 VA examination, the Court in Correia v. McDonald, 28 Vet. App. 158 (2016) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. The matter is REMANDED for the following action: 1. The AOJ shall associate the Veteran’s most recent outstanding VA medical treatment records with his file, specifically those records from October 2016 to the present. 2. Ask the Veteran to complete a VA Form 21-4142 for any private treatment providers that have treated him for his degenerative disc disease. Thereafter, obtain and associate with the claims folder any private treatment records identified. 3. Then, afford the Veteran an orthopedic examination to determine the current severity of his degenerative disc disease. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. Also, in order to comply with the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • 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. The VA examiner should provide a complete rationale for any opinions provided. The examiner should identify and evaluate any associated neurologic abnormalities, if any. 4. Thereafter, readjudicate the claim. If any benefit sought on appeal remains denied, furnish the Veteran and his representative, if any, a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Victoria A. Narducci, Associate Counsel