Citation Nr: 18155606 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 17-30 083 DATE: December 4, 2018 REMANDED Entitlement to a rating in excess of 20 percent for lumbar sprain with degenerative joint disease is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Navy from May 1984 to August 1992. His decorations include the Combat Action Ribbon and the National Defense Service Medal. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Atlanta, Georgia. Entitlement to a rating in excess of 20 percent for lumbar sprain with degenerative joint disease is remanded. The Veteran last underwent a VA examination of his lumbar spine in November 2014. The report of that examination does not contain all of the necessary information for a proper evaluation of his disability. See e.g., Correia v. McDonald, 28 Vet. App. 158 (2016) (requiring, among other things, joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing). Moreover, statements the Veteran has made in his substantive appeal suggest that his condition may have since increased in severity. A new examination is required. The Veteran’s March 2015 notice of disagreement (NOD) is partially illegible. To the extent possible, a re-scan of the NOD should be obtained. Updated records of any relevant VA treatment should also be procured. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). This matter is REMANDED for the following action: 1. Make efforts to obtain a legible re-scan of the Veteran’s March 2015 NOD. Efforts to obtain the re-scan should be fully documented. If a re-scan of the NOD cannot be obtained, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified and afforded an opportunity to submit a supplementary statement. 2. Obtain records of any relevant VA treatment the Veteran has received since November 21, 2014. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for an examination of his thoracolumbar spine. The examiner should provide a full description of the Veteran’s associated functional impairments as they relate to the relevant rating criteria. The examination must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing, if possible. The examiner must also attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran’s competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner’s conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Boyea, Law Clerk