Citation Nr: 18157580 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 09-33 041 DATE: December 13, 2018 REMANDED Entitlement to an evaluation in excess of 10 percent prior to December 5, 2011 and in excess of 20 percent thereafter for degenerative disc disease (DDD) of the lumbar spine with herniation at L4-5 and L5-S1 is remanded. Entitlement to an evaluation in excess of 10 percent prior to June 14, 2010 and in excess of 20 percent thereafter for sciatica of the left lower extremity is remanded. Entitlement to an evaluation in excess of 10 percent prior to June 14, 2010 and in excess of 20 percent thereafter for sciatica of the right lower extremity is remanded. Entitlement to an evaluation in excess of 10 percent prior to January 31, 2012 and in excess of 30 percent as of March 1, 2013 for degenerative joint disease (DJD) due to post-surgical residuals to the right knee is remanded. Entitlement to an evaluation in excess of 10 percent for DJD of the left wrist with decreased motion is remanded. Entitlement to total disability rating due to individual unemployability (TDIU) due to service-connected disabilities is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1975 to April 1984. This case comes before the Board of Veterans’ Appeals (Board) on appeal of September 2008 and February 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). These issues were most recently before the Board in September 2017 when they were remanded for further development, to include new examinations. Remanded Issues Further development is necessary to comply with the terms of the September 2017 remand. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran or other claimant, as a matter of law, the right to compliance with the Board's remand order. Moreover, the Court further held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Id. The September 2017 Board remand directed that new examinations for the Veteran’s lumbar spine, right knee, and left wrist disabilities, in pertinent part, comply with the specifications of Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the Court held that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if appropriate, with range of motion measurements of an opposite undamaged joint. The Veteran’s lumbar spine, right knee, and left wrist disabilities were most recently examined by VA in June 2018 pursuant to the September 2017 Board remand; unfortunately, the examination reports do not meet the specifications of Correia. The examination reports contain range of motion testing for what is presumably active motion, but not in passive motion, weight-bearing, and nonweight-bearing. As a result of these Stegall violations, an additional examination(s) is necessary under 38 C.F.R. § 3.159(c)(4) to ensure compliance with the decision in Correia. As the VA spine examination(s) may provide additional evidence as to the severity of the Veteran’s service-connected sciatica of the right and left lower extremities, the Board finds the claim is intertwined with the increased rating claim for DDD of the lumbar spine and adjudication must be deferred. Additionally, the Veteran’s claim for TDIU is inextricably intertwined with the adjudication of the increased rating claims and it is remanded as well. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination(s) to determine the current severity of his service-connected lumbar spine, right knee, and left wrist disabilities. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination(s). All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests that are deemed necessary for an accurate assessment(s) must be conducted. The examiner(s) must record all pertinent medical complaints, symptoms, and clinical findings in detail. The examiner(s) should provide the range of motion of the Veteran’s lumbar spine, right knee, and left wrist and comment on the degree of functional loss due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. The examiner(s) should report (in degrees) the point at which pain is objectively recorded. In doing so, the examiner(s) should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the back is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. This information must be derived from testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. The examination report(s) must confirm that all such testing has been made and reflect the results of the testing. If the examiner(s) is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner(s) must specify the type of test performed (i.e., active or passive, weight-bearing or non-weight-bearing). The examiner(s) must provide a complete rationale for any opinion given. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel