Citation Nr: 18155785 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-41 257 DATE: December 6, 2018 REMANDED Entitlement to a rating in excess of 20 percent for service-connected lumbosacral intervertebral disc syndrome with grade 1 spondylolisthesis of L5-S1 is remanded. Entitlement to an initial rating in excess of 30 percent for service-connected adjustment disorder with mixed anxiety and depressed mood is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1986 to November 1989. The Board thanks the Veteran for his service. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 and May 2013 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran raised the issue of entitlement to service connection for PTSD in August 2013. He was notified of his and VA’s responsibilities with respect to developing this claim in March 2014. In June 2014 the RO deferred making a decision on the claim because the instant increased rating claim was already being developed, and the issues were deemed to be inextricably intertwined. The Veteran was incorrectly informed in a July 2014 letter from the RO that no further action would be taken regarding the PTSD claim and that the issue would be handled by the Board. However, the Board cannot adjudicate the PTSD claim in the first instance, as the Board does not have jurisdiction over issues that have not been previously adjudicated by the RO. This matter is referred to the RO for appropriate action. The Board notes that the Veteran has perfected an appeal for the issue of entitlement to service connection for a right knee disability. See August 2018 statement of the case and VA Form 9. However, the RO has not certified that issue to Board, and it is unclear whether the RO is undertaking any further development or adjudicative actions. Therefore, the Board will not address the issue at this juncture. VA and private treatment records have been associated with the claims file since the October 2014 Statement of the Case (SOC) was issued. Although the Veteran’s substantive appeal was filed after February 2, 2013, these records were obtained by the VA rather than submitted by the Veteran, and thus there is no automatic waiver of RO review. 38 C.F.R. §§ 19.31, 20.1304(c). Additionally, as detailed below, further development is required by the RO whether or not the Veteran waives initial review, and thus it would not benefit the Veteran to further delay the process by seeking a waiver prior to Board adjudication. Accordingly, due to the new records and other needed development, the Board finds that both the issues must be remanded. 1. Entitlement to a rating in excess of 20 percent for service-connected lumbosacral intervertebral disc syndrome with grade 1 spondylolisthesis of L5-S1 is remanded. The new VA treatment records associated with the claims file show that the Veteran has continued to experience low back pain and stiffness, and flare-ups for which he has been prescribed courses of prednisone. However, no examination has been conducted to evaluate the Veteran’s condition since April 2013 and so the Board does not have recent information upon which to base a rating decision. Additionally, the most recent VA examination in April 2013 was not compliant with requirements from Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). First, it does not appear that the examination included evaluation of the Veteran’s range of motion for pain on both active and passive motion, and in weight bearing and nonweight-bearing. Second, although the examiner indicated that the Veteran experiences flare-ups, there was no opinion given regarding their effect on the Veteran’s range of motion or other functional impairment. It is necessary for the examiner to, if possible, provide an estimate as to the additional limitation of range of motion caused by the Veteran’s symptoms during a flare-up. See Sharp, 29 Vet. App. at 34. In addition, evidence of the frequency and duration of flare-ups, not just days missed from work, would have been helpful to the Board. A prior VA examination conducted in July 2011 did not use a standard Disability Benefits Questionnaire for the back or spine, and so did not answer any of the standard questions relevant to such conditions. She stated conclusively that the Veteran had no limitation of motion (in contradiction to all other evidence of record), without providing any range of motion measurements. The information provided also suggests the examiner did not have a complete medical history related to the Veteran’s condition. Based on the above, the Board finds it is necessary to remand the issue of entitlement to an increased initial rating for the Veteran’s service-connected lumbosacral intervertebral disc syndrome with grade 1 spondylolisthesis of L5-S1. 2. Entitlement to an initial rating in excess of 30 percent for service-connected adjustment disorder with mixed anxiety and depressed mood is remanded. The new VA treatment records associated with the claims file include treatment notes from numerous appointments for psychiatric care. Private treatment records furnished by the Veteran’s treating physician are of particular interest in relation to the issue on appeal, as they show a clear progression of symptoms from 2013 to 2015, to include worsening memory and panic attacks and acquiring a flattened affect. Indeed, it appears the Veteran was instructed to take disability leave for the condition in approximately May 2015. However, there are no private treatment records associated with the claims file after a letter written by the physician in May 2015 describing the Veteran’s symptoms and indicating the Veteran had been put on disability leave due to posttraumatic stress disorder (PTSD) (addressed below) and major depression. Due to the length of time since the last VA examination in July 2011 and an apparent progression of the Veteran’s symptoms, the Board finds a new VA examination should be scheduled. Based on the foregoing, the Board finds it is necessary to remand the issue of entitlement to an increased initial rating for the Veteran’s service-connected psychiatric disability for further development. The matters are REMANDED for the following action: 1. Make arrangements to incorporate into the record any updated private and/or VA medical records concerning the claims. 2. Following the completion of (1) above, schedule the Veteran for an appropriate VA examination to determine the nature, extent, and severity of his service-connected lumbosacral intervertebral disc syndrome with grade 1 spondylolisthesis of L5-S1 (low back disability). All indicated tests should be performed, and the results should be reported in detail. The examiner is requested to: (a.) delineate all symptomatology associated with, and the current severity of the service-connected low back disability. (b.) record the results of range of motion (1) on BOTH active and passive motion AND (2) in weightbearing and non-weightbearing. If the examiner is unable to conduct the required testing he or she should clearly explain why that is so. (c.) provide a full description of the manner and extent to which the Veteran’s service-connected low back disability, considered alone, impairs functioning. (d.) express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess or estimate the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the Veteran is not having a flare-up when examined, the examiner should determine whether he or she can estimate, given the Veteran’s description of symptoms, what his range of motion would be on flare-up. Frequency and duration of flare-ups should be noted. (e.) Express an opinion as to whether information can be provided as to the Veteran’s range of motion (1) on BOTH active and passive motion AND (2) in weightbearing and non-weightbearing and additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss since May 2010, a year prior to the filing of the present claim. If it is not feasible to offer any opinion to any degree of medical certainty without resort to speculation, the examiner must provide a specific explanation for why this is so. If such an opinion is not procurable based on a lack of knowledge, then the inability to offer such an opinion must be based on a lack of knowledge among the “medical community at large,” and not merely a lack of expertise, insufficient information, or unprocured testing on the part of the examiner. 3. Following the completion of (1) above, schedule the Veteran for a VA examination to ascertain the current severity of the Veteran’s service-connected adjustment disorder with mixed anxiety and depressed mood. The examiner should review the Veteran’s claims file in conjunction with the examination. All necessary tests should be conducted. The report of examination should contain an account of all manifestations of the disability found to be present. The examiner should provide a complete rationale for all opinions. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Anderson, Associate Counsel