Citation Nr: 18156062 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-04 943 DATE: December 6, 2018 REMANDED Entitlement to an initial rating higher than 10 percent for the service-connected degenerative disc disease of the lumbar spine is remanded. REASONS FOR REMAND The Veteran had active service from January 1966 to May 1969. The issue on appeal arises from a rating decision in July 2015 whereby the Regional Office (RO) granted service connection for degenerative disc disease of the lumbar spine and awarded a 10 percent rating for this disability, effective June 22, 2010. Notably, in a rating decision in December 2015, the RO proposed that the decision to grant service connection for degenerative disc disease of the lumbar spine effective June 22, 2010 was clear and unmistakable error (CUE) as the effective date is June 25, 2014. In a December 2017 letter, the Veteran was advised that the proposal to correct the effective date would not affect his combined rating and that the proposed action would not result in an overpayment of benefits based on CUE. In August 2018, the Veteran’s representative cancelled the Veteran’s requested hearing, noting that he understood that the CUE decision did not and will not reduce his compensation benefits. In a rating decision dated in November 2018, the RO determined that the decision to grant service connection for degenerative disc disease of the lumbar spine effective June 22, 2010 was CUE and that the effective date is June 25, 2014. The Veteran contend that he is entitled to a 20 percent rating for the service-connected degenerative disc disease of his lumbar spine. See, e.g., January 2016 statement. However, it is unclear if such rating would satisfy his appeal as through his representative in November 2018 he contended that he has not had a VA examination of the lumbar spine in years and that under the duty to assist he is entitled to a contemporaneous medical examination. See November 2018 brief. Thus, based on the evidence of record, the Veteran has not clearly and unambiguously limited his appeal for a higher rating for the service-conencted degenerative disc disease of his lumbar spine. It must therefore be presumed that he seeks the maximum rating possible. Entitlement to an initial rating higher than 10 percent for degenerative disc disease of the lumbar spine. The Veteran was most recently afforded a VA examination of his lumbar spine in June 2015. However, the examination did not comply with the requirements set forth in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Specifically, the June 2015 VA examiner did not address whether there are range of motion findings with regard to the Veteran’s lumbar spine that are painful on passive use and in weight bearing. The matter is REMANDED for the following action: 1. Obtain any outstanding treatment records (VA or private). All attempts associated therewith should be associated with the Veteran’s claims file. 2. Then, schedule the Veteran for an examination to determine the current severity of the service-connected degenerative disc disease of his lumbar spine. The examiner should provide a full description of all relevant pathology pertaining to this disability and report all signs and symptoms necessary for evaluating this disorder under the rating criteria. The examiner must test the range of motion of the Veteran’s lumbar spine that is painful on active use, passive use, in weight-bearing, and non-weight-bearing. If the Veteran experienced flare-ups, the examiner must estimate any additional functional loss caused by the Veteran’s flare-ups, to the extent possible. The examiner should elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups expressed in terms of additional range of motion lost. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the general medical knowledge (no one could respond given medical science and the known facts), or a deficiency in the record (more facts are required). THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Mac, Counsel