Citation Nr: 18155561 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-04 600 DATE: December 4, 2018 REMANDED Entitlement to a compensable rating for lumbar spine degenerative disc disease (DDD) is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1972 to June 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision by the Department of Veterans Affairs (VA). In November 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Board notes that the Veteran and his representative stated that the Veteran was not appealing the reduction adjudicated in the April 2014 rating decision and was only appealing the increased rating issue. See November 2018 Board hearing. Thus, remanding the issue of the propriety of the reduction in the April 2014 rating decision pursuant to Manlincon v. West, 12 Vet. App. 238 (1999), is not appropriate. 1. Entitlement to a compensable rating for lumbar spine DDD. VA examinations must include joint testing on both active and passive motion, and in weight-bearing and non-weight-bearing circumstances. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, the VA spine examination of record does not fully comport with the requirements of Correia. See December 2013 VA examination. Thus, remand for a new VA spine examination is necessary. The Veteran’s rating for his service-connected lumbar spine disability was originally characterized as for lumbosacral strain and was re-characterized as for DDD in a February 2010 rating decision. As discussed before, the April 2014 rating decision reduced the Veteran’s rating for his lumbar spine DDD, which was explicitly not appealed by the Veteran. The basis for the reduction (which was actually a de facto severance, see Hedgepeth v. Wilkie, No. 17-0794 (Vet. App. Nov. 7, 2018)) was that the February 2010 rating decision committed a clear and unmistakable error (CUE) and the Veteran’s DDD was not a continuation of his service-connected lumbosacral strain, but rather the result of post-service work-related injuries. Therefore, although the Veteran’s service-connected lumbar spine disability is still characterized as for DDD, there was an unappealed finding that his DDD is not service-connected. Thus, on remand, the VA examiner should identify, if possible, functional limitation caused by the Veteran’s lumbosacral strain rather than his DDD. 2. Entitlement to TDIU is remanded. The matter of entitlement to TDIU is inextricably intertwined with the Veteran’s other remanded issue; accordingly, it must be remanded as well. The matters are REMANDED for the following action: 1. The AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected spine disability. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. In addition, the examiner must provide an opinion and explanation regarding the following: Can functional limitation caused by the Veteran’s service-connected lumbosacral strain be distinguished from his post-service DDD without resorting to mere speculation? If so, the examiner should provide the requested information as related to the Veteran’s service-connected lumbosacral strain. Range of motion measurements must be included for active and passive motion, and weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 2. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel