Citation Nr: 18156317 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 15-14 577A DATE: December 7, 2018 REMANDED Entitlement to service connection for left hip is remanded. Entitlement to service connection for right hip is remanded. Entitlement to a rating in excess 20 percent disabling for degenerative arthritis of the lumbar spine is remanded. Entitlement to a rating in excess of 70 percent disabling for major depressive disorder (MDD) from May 13, 2014, is remanded. Entitlement to total rating based on individual employability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from June 1981 to June 1983. An April 2015 Statement of the Case addressed the bilateral hip service connection, lumbar spine increased rating, MDD increased rating, and TDIU claims. In his May 2015 substantive appeal, the Veteran specified that he was appealing the bilateral hip service connection claims, lumbar spine increased rating claim, and TDIU claim. However, the Agency of Original Jurisdiction (AOJ) certified the MDD increased rating claim to the Board in March 2016. The Veteran’s representative presented argument relevant to the MDD increased rating claim in an October 2018 Informal Hearing Presentation. Certification of issues on appeal by the AOJ is used for administrative purposes and neither confers nor deprives the Board of jurisdiction over appeals. 38 C.F.R. § 19.35 (2017). However, the Court of Appeals for Veterans Claims (Court) has held that a substantive appeal is not required to confer jurisdiction on the Board and the Board may waive the filing of a substantive appeal. See Percy v. Shinseki, 23 Vet. App. 37 (2009). Since VA has treated the MDD increased rating claim, as properly appealed and subsequent communication has indicated a continued interest by the Veteran in seeking a higher evaluation, the Board will take jurisdiction over the MDD increased rating claim. In October 2018, the Veteran requested that his claims be advanced on the docket due to financial hardship. Evidence having been received demonstrating a financial hardship, the motion is hereby granted pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). Remand The most recent medical evidence in the claims file dates back to April 2015. In a March 2016 statement, the Veteran’s representative reported that there was new medical evidence relevant to the claims on appeal at the Louisville VA Medical Center and requested that such records be obtained prior to the Board’s decision. To date, outstanding VA treatment records have not been associated with the claims file. Therefore, remand is necessary to obtain such records prior to promulgation of a decision on the appealed issues. 38 U.S.C. § 5103a (2017). The Veteran most recently underwent a VA examination of his lumbar spine in June 2014. The examiner determined that the diagnostic findings were in no way consistent with the Veteran’s subjective and demonstrated reports of functional limitation. She also stated that his range of motion during the examination was in no way credible and should not be used for rating purposes. She stated that this was the case, even taking into account the factors required to be evaluated according to the Court’s finding in DeLuca v. Brown, 8 Vet. App. 202 (1995), including pain, fatigue, lack of endurance, incoordination, and weakness, particularly with repeated movements. Subsequent to the examination, the Court held in Correia v. McDonald, 28 Vet. App. 158 (2016), that the final sentence of 38 C.F.R. 4.59 (2017) requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia established additional requirements for examinations regarding musculoskeletal disabilities. After reviewing the examinations of record, the Board finds that they are incomplete in this regard and requires further medical guidance, in light of the recent holding in Correia. Although the examination results were not deemed credible by the examiner regarding active range of motion and when considering repetitive use, no discussion of the joint-testing factors required by Correia was included. Additionally, the Court has since stated that flare-ups must be factored into an examiner’s assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). As the previous examination report does not fully satisfy the requirements of Correia and 38 C.F.R. 4.59, a new examination is indicated. The matters are REMANDED for the following action: 1. Obtain outstanding relevant VA treatment records, to include records since April 2015 from the Louisville VA Medical Center. 2. After obtaining all outstanding records, schedule the Veteran for a new VA examination to determine the current nature and severity of his degenerative arthritis of the lumbar spine. The claims folder must be made available to and reviewed by the examiner. All indicated tests and studies should be performed, including range of motion studies in degrees, and the results reported. (a.) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. (b.) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination should record the results of range of motion testing for the thoracolumbar spine on both active and passive motion and in weight-bearing and nonweight-bearing. If the thoracolumbar spine cannot be tested on “weight-bearing,” then the examiner should specifically indicate that such testing cannot be done. (c.) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. (d.) In regard to flare-ups, if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. (e.) The examiner’s opinion must reflect consideration of the Veteran’s reports as to his history and symptomatology. If the examiner has reason to believe that the Veteran is uncooperative with the examination, or is otherwise not credible in his report of symptoms, the examiner should explicitly state such and provide a basis for the conclusion. (f.) All opinions provided must be fully explained. If any requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. Readjudicate the issues on appeal. If any benefit sought remains denied, issue a Supplemental Statement of the Case and return to the Board, if otherwise in order. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Rachel E. Jensen, Associate Counsel