Citation Nr: 18156339 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 12-15 957 DATE: December 7, 2018 REMANDED Entitlement to an increased disability rating in excess of 10 percent for lumbar spine degenerative disc and joint disease (herein lumbar spine disability) from November 1, 2012 is remanded. Entitlement to an increased disability rating in excess of 20 percent for right lower extremity radiculopathy from November 1, 2012 is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1973 to July 1996. Increased Rating – Lumbar Spine Disability Upon review, remand is required to afford the Veteran a new VA examination. He was last afforded a VA examination for his lumbar spine disability in May 2016. The United States Court of Appeals for Veterans Claims (Court) has held that “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 states that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing.” The prior May 2016 VA examination did not comply with Correia and as such, remand is required so that the Veteran may be afforded a new VA examination that contains adequate information pursuant to Correia. Also, the Veteran’s April 2018 statement indicates a possible increase in severity of his lumbar spine disability since the May 2016 VA examination. In this regard, the May 2016 VA back Disability Benefits Questionnaire (DBQ) stated “standing limited to 30-60 minutes, sitting limited to 2 hours.” By contrast, the Veteran stated in the April 2018 statement that “I can generally stand for only about ten to fifteen minutes before I begin experiencing pain and I can sit for only about ten to fifteen minutes before I need to stand up and stretch my back.” The current severity of the Veteran’s lumbar spine disability will accordingly be determined by the VA examination on remand. Initial Rating – Right Lower Extremity Radiculopathy By way of background, a September 2016 Board decision denied entitlement to a disability rating in excess of 10 percent for right lower extremity radiculopathy prior to November 1, 2012. The issue of entitlement to an increased disability rating in excess of 10 percent from November 1, 2012 was remanded. In an October 2017 Order, the Court granted a joint motion for partial remand (JMPR), which vacated the portion of the September 2016 Board decision that denied entitlement to a disability rating in excess of 10 percent for right lower extremity radiculopathy prior to November 1, 2012. In a July 2018 decision, the Board granted entitlement to a 20 percent disability rating, but no higher, for right lower extremity radiculopathy prior to November 1, 2012. An August 2018 rating decision by the Agency of Original Jurisdiction noted that it was implementing the July 2018 Board decision. The rating decision granted an increased 20 percent disability rating for right lower extremity radiculopathy, effective July 7, 2009 and continuing thereafter. The Veteran’s right lower extremity radiculopathy has thus been rated at 20 percent during the entire appeal period from July 7, 2009. As such, the issue on appeal is therefore characterized as entitlement to an increased disability rating in excess of 20 percent for right lower extremity radiculopathy from November 1, 2012. Upon review, remand is required for this claim. Initially, it is intertwined with the lumbar spine disability claim being remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). This is because the Veteran will be afforded a VA examination for his lumbar spine disability and the VA DBQ that will presumably be completed contains information relevant to the right lower extremity radiculopathy claim. See Back (Thoracolumbar Spine) Conditions DBQ (VA Form 21-0960M-14). In addition, a new VA examination is warranted due to a possible increase in severity of the Veteran’s right lower extremity radiculopathy. In this regard, as noted above, the May 2016 VA back DBQ stated “standing limited to 30-60 minutes, sitting limited to 2 hours.” By contrast, a May 2018 Vocational Employability Assessment stated that “[s]ince 2012, [the Veteran’s] sitting tolerance has deteriorated from about one to two hours to just 10 to 15 minutes in the past year or so because of right foot numbness and pain, due to peripheral neuropathy on the left and radiculopathy on the right” and that “[t]hese conditions similarly limit his standing to no more than 10 or 15 minutes at one time.” As such, in light of the possible worsening of the Veteran’s right lower extremity radiculopathy since the last VA examination, remand is required to afford the Veteran a new VA examination to determine the current severity of such disability. All Claims While on remand, outstanding VA treatment records must be obtained (the most recent records of record are from September 2018). Also, the evidence indicated that the Veteran receives the majority of his medical care form non-VA sources. See December 2017 VA Treatment Record (stating that “[m]ost of [the Veteran’s] medical care is managed outside the VA and he stated that he follows every 6 months with a neurologist”). Also, in an April 2018 statement the Veteran stated that “I have experienced a couple of incapacitating episodes of back pain, which required doctor-prescribed bed rest of approximately a week, over the past year or so.” It appears that the most recent private treatment records of record were submitted in 2016. As such, the Veteran is invited to submit any relevant outstanding private medical records or releases for such providers (upon receipt, VA will attempt to obtain the identified records). Further, evidence indicates that the Veteran has received medical care from a Department of Defense (DOD) facility, specifically from the Evans Army Community Hospital in Fort Carson, Colorado. It appears that VA most recently obtained records from this facility in March 2012. An October 2016 VA treatment note stated that the Veteran “receives all care thru Fort Carson and plans to cont[inue] to do so.” As such, the Veteran is invited to inform VA if any outstanding DOD treatment records are relevant to the claims being remanded (upon being informed of such, VA will attempt to obtain the identified records) or to submit such records. See 38 U.S.C. § 5103A(c)(3); 38 C.F.R. § 3.159(c)(3) (both relating to VA’s duty to assist in regard to obtaining relevant non-VA Federal records). The matters are REMANDED for the following action: 1. Obtain outstanding VA treatment records from September 2018. 2. Afford the Veteran an appropriate VA examination to determine the current severity of his lumbar spine disability. With respect to range of motion testing, this must be conducted on active and passive motion and in weight-bearing and nonweight-bearing conditions (pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016)). If the examiner is unable to conduct the required testing, he or she should clearly explain why that is so. (Continued on the next page)   3. Afford the Veteran an appropriate VA examination to determine the current severity of his right lower extremity radiculopathy. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hoopengardner, Counsel