Citation Nr: 18158667 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-63 128 DATE: December 17, 2018 ORDER Entitlement to an initial 20 percent disability evaluation for compression fracture of the lumbar spine for the rating period prior to April 18, 2016, is granted. Entitlement to a rating greater than 20 percent for left lower extremity radiculopathy, sciatic nerve, is denied. Entitlement to an initial 30 percent disability evaluation for left lower extremity radiculopathy, femoral nerve, is granted. Entitlement to an initial 30 percent disability evaluation for right lower extremity radiculopathy, femoral nerve, is granted. Entitlement to a total rating for compensation on the basis of individual unemployability (TDIU) for the rating period prior to August 1, 2016, is granted. REMANDED Entitlement to a disability evaluation in excess of 20 percent for compression fracture of the lumbar spine for the rating period since April 18, 2016 is remanded. FINDINGS OF FACT 1. The Veteran’s compression fracture of the lumbar spine is manifest by pain on motion and tenderness to palpation, with functional loss due to pain, weakness, and fatigue upon movement; the Veteran does not experience incapacitating episodes. 2. The Veteran’s left lower extremity sciatic nerve radiculopathy is manifested by moderate incomplete paralysis of the sciatic nerve. 3. The Veteran’s left lower extremity femoral nerve radiculopathy is manifested by severe incomplete paralysis of the femoral nerve. 4. The Veteran’s right lower extremity femoral nerve radiculopathy is manifested by severe incomplete paralysis of the femoral nerve. 5. The Veteran’s service-connected disabilities, during the rating period prior to August 1, 2016, rendered him unable to engage and retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a 20 percent disability evaluation for compression fracture of the lumbar spine have been met for the rating period prior to April 18, 2016. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 to 5243 (2018). 2. The criteria for a disability rating higher than 20 percent for Veteran’s left lower extremity sciatic nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3§§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2018). 3. The criteria for a 30 percent disability rating for Veteran’s left lower extremity femoral nerve radiculopathy have been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3§§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 85260 (2018). 4. The criteria for a 30 percent disability rating higher for Veteran’s right lower extremity femoral nerve radiculopathy have been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3§§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8526 (2018). 5. The criteria for TDIU have been met for the rating period prior to August 1, 2016. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the U.S. Army from January 1987 to May 1998 Additionally, the Veteran served in the U.S. Army from May 1998 to April 2006; he received an other than honorable discharge for this period of service. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a September 2013 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Oakland, California. Also, in an October 2016 rating decision, the Veteran was awarded a 20 percent disability evaluation for left sciatic nerve radiculopathy, a 20 percent disability evaluation for left femoral nerve radiculopathy, and a 20 percent disability evaluation for right femoral nerve radiculopathy; an effective date of October 11, 2012 was assigned for these increased disability evaluations. As the Veteran has not been granted the maximum benefits allowed, the claims for increased disability ratings remain on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993).   Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2018). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the agency of original jurisdiction (AOJ) issued a notice letter to the Veteran. The letter explained the evidence necessary to substantiate the Veteran’s initial claim for service connection, as well as the legal criteria for entitlement to such benefits; the Veteran’s claims for increased disability evaluations are downstream from an initial grant of service connection. The letter also informed him of his and VA’s respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of “relevant” records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be “necessary” to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran’s available service treatment records, reports of post-service treatment, and the Veteran’s own statements in support of his claims. The Veteran was afforded VA examinations responsive to the claims for increased disability ratings. These opinions were conducted by a medical professional, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The examination reports contain all the findings needed to assess the Veteran’s claims on appeal, including history and clinical evaluation. See 38 C.F.R. § 3.327(a) (2018); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007). The Board has reviewed the Veteran’s statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran’s claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). When assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. 1. Entitlement to an increased disability evaluation for compression fracture of the lumbar spine, initially rated as 10 percent disabling The Veteran is assigned a 10 percent disability evaluation for compression fracture of the lumbar spine pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237. Lumbosacral and cervical spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (“general rating formula”). 38 C.F.R. § 4.71a, Diagnostic Code 5237-5242. Intervertebral disc syndrome (IVDS) is rated under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides for ratings from 10 to 60 percent based on the frequency and duration of incapacitating episodes, defined in Note 1 as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note 2 provides that, for VA compensation purposes, the combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis as a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note 6 provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. According to the general rating formula, a 10 percent evaluation is to be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is to be assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is to be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is to be assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is to be assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237 for lumbosacral strain; Diagnostic Code 5242 for degenerative arthritis of the spine; and Diagnostic Code 5243 for intervertebral disc syndrome. The Veteran contends that he is entitled to a higher rating and that his symptoms have been consistent throughout the appeal period. After a review of all the evidence, the Board finds that the Veteran’s disability picture more nearly approximates the criteria for a 20 percent disability rating for his service-connected compression fracture of the lumbar spine for the rating period prior to April 18, 2016. The evaluation for the period beginning on April 18, 2016, will be addressed in the remand section of this decision. At the August 2013 VA examination, that the Veteran had full range of motion, with pain on motion, with flare-ups that movement difficult. The Veteran’s August 2013 VA examination report showed functional impairment due to weakness, pain on movement, and reduced range of motion. He did not have tenderness to palpation, guarding, or muscle spasm. Treatment records show that he sought treatment for chronic back pain; he underwent physical therapy. No range of motion was recorded. At the April 2016 VA examination, there was pain on motion, with reduced range of motion. The Veteran had forward flexion to 90 degrees, extension to 30 degrees, right lateral flexion to 30 degrees and left lateral flexion to 20, right lateral rotation to 30 degrees and left lateral rotation to 20 degrees. However, the Veteran had pain on motion, and experienced functional loss due to pain, weakness, and fatigue. There was tenderness to palpation and pain on weightbearing, but there was no atrophy, guarding, or spasm; strength and reflex testing was normal. There was no evidence of ankylosis. The Board acknowledges that the Veteran had essentially full range of motion during this period and no evidence of guarding or spasm, which would entitle the Veteran to a higher rating under the schedular criteria, however, the Board notes that the Veteran nonetheless had documented pain on motion and use, and tenderness to palpation, and that the Veteran sought treatment for his back pain due to its interference with her activities of daily living. Accordingly, the Board finds that this period has demonstrated functional loss the equivalent of a 20 percent disability rating during the period prior to April 18, 2016. However, the lay and medical evidence demonstrates that the Veteran’s symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 20 percent disability rating. There was no spasm, atrophy, guarding, abnormal gait, or decrease in strength, and he did not need assistive devices. Accordingly, a 20 percent rating, and no higher, for functional loss due to back pain, for the period prior to April 18, 2016, is awarded. To the extent that the Veteran claims that his pain upon motion is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current rating is based on the objectively demonstrated reduced motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The evidence also shows that the Veteran’s compression fracture of the lumbar spine has not been productive of incapacitating episodes at any time during the rating period on appeal. The Veteran has not reported, and the evidence does not demonstrate, that the Veteran experienced incapacitating episodes requiring bed rest; the Veteran’s VA examination reports and treatment records do not demonstrate that his treating physicians noted any incapacitating episodes or prescribed bed rest. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Veteran was granted service connection for radiculopathy of the right and left lower extremities and assigned separate disability evaluations for each lower extremity. As the Veteran is separately evaluated for his lower extremity neurological deficits, it is not for consideration here. As such, the Board finds that the Veteran’s service-connected compression fracture of the lumbar spine is entitled to a disability rating of 20 percent for the rating period prior to April 18, 2016. 2. Entitlement to an increased disability evaluation for left lower extremity radiculopathy, sciatic nerve, initially rated as 20 percent disabling The Veteran is currently assigned a 20 percent disability evaluation for left lower extremity radiculopathy of the sciatic nerve pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, a 10 percent disability evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent evaluation is assigned for moderate incomplete paralysis and a 30 percent disability rating requires moderately severe incomplete paralysis. A 50 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent disability rating requires complete paralysis; the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124(a). After a review of all the evidence, the Board finds that the weight of the evidence demonstrates that the Veteran’s left lower extremity radiculopathy of the sciatic nerve is no more than moderate. The evidence of record does not show that he experiences moderately severe incomplete paralysis of the left sciatic nerve. At the August 2013 and April 2016 VA examinations, the Veteran’s left lower extremity sciatic manifestations were described as moderate. To that extent, the Board points out that the Veteran had moderate paresthesias and decreased sensation at L3/L4; reflexes and muscle strength were full. Therefore, his symptomatology most closely approximates the criteria for the currently assigned 20 percent disability evaluation for moderate incomplete paralysis of the sciatic nerve. In reaching this determination, the Board has considered the guidance provided by 38 C.F.R. §§ 4.120, 4.123, and 4.124. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 20 percent for right lower extremity radiculopathy for the entire appeal period, and the evidence supports the assignment of 20 percent rating for the right lower extremity. 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to an increased disability evaluation for left lower extremity radiculopathy, femoral nerve, initially rated as 20 percent disabling, 4. Entitlement to an increased disability evaluation for right lower extremity radiculopathy, femoral nerve, initially rated as 20 percent disabling, The Veteran is currently assigned a 20 percent disability evaluation for left lower extremity radiculopathy of the femoral nerve and a 20 percent disability evaluation for right lower extremity radiculopathy of the femoral nerve pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8526. Under Diagnostic Code 8526, a 10 percent disability evaluation is warranted for mild incomplete paralysis of the femoral nerve. A 20 percent evaluation is assigned for moderate incomplete paralysis and a 30 percent disability rating requires severe incomplete paralysis. A 40 percent rating requires complete paralysis of the femoral nerve with atrophy of the quadriceps extensor muscles. See 38 C.F.R. § 4.124a, Diagnostic Code 8526. The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124(a). The Board finds that the weight of the evidence demonstrates that the Veteran’s service-connected right lower extremity radiculopathy and left lower extremity radiculopathy of the femoral nerve more closely approximate the criteria for a 30 percent disability rating, but no higher, for each leg for the entire rating period on appeal. The severity of the manifestations of the Veteran’s right lower extremity radiculopathy and left lower extremity radiculopathy of the femoral nerve were not evaluated at a VA examination between the initial August 2013 VA examination for purposes of service connection and April 2016; at that time, the Veteran’s right lower extremity radiculopathy and left lower extremity radiculopathy of the femoral nerve were described as moderate and severe; the Veteran had severe symptomatology including numbness and intermittent pain, with moderate paresthesias/dysthesia. However, upon VA examination, muscle strength was normal and there was no evidence of muscle atrophy. These findings more nearly approximate a severe disability, but do not rise to the level of complete paralysis of the femoral nerve. Therefore, his symptomatology most closely approximates the criteria for a 30 percent disability evaluation for severe incomplete paralysis of the femoral nerve for each leg for the entire rating period on appeal. In reaching this determination, the Board has considered the guidance provided by 38 C.F.R. § § 4.120, 4.123, and 4.124. The weight of the evidence demonstrates that the Veteran’s right lower extremity radiculopathy and left lower extremity radiculopathy of the femoral nerve was no more than severe incomplete paralysis during the entire rating period on appeal. The evidence of record does not show that he experienced complete paralysis of the right or left femoral nerve. The Board finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 30 percent, per lower extremity, for the entire rating period on appeal. 38 C.F.R. § 4.3, 4.7. TDIU Entitlement to a total rating for compensation on the basis of individual unemployability (TDIU) for the rating period prior to August 1, 2016. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For purposes of this section, disabilities of both upper or lower extremities will be considered a single disability. 38 C.F.R. § 4.16(a)(1). Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.’ 38 C.F.R. § 4.16(a) (2017). The Veteran seeks entitlement to TDIU based on his service-connected compression fracture of the lumbar spine and radiculopathy of the extremities. For the rating period prior to August 1, 2016, the Veteran was assigned a 10 percent disability evaluation for his service-connected avascular necrosis and osteoarthritis of the left hip (now characterized as total left hip replacement), effective August 5, 2013; a 20 percent disability rating for left lower extremity radiculopathy of the sciatic nerve, effective October 11, 2012; a 20 percent disability rating for compression fracture of the lumbar spine; a 30 percent rating for left lower extremity radiculopathy of the femoral nerve, effective October 11, 2012; a 30 percent rating for right lower extremity radiculopathy of the femoral nerve, effective October 11, 2012; a 10 percent disability rating for a residual tender scar of the left hip, effective June 18, 2015; a noncompensable disability rating for a surgical scar of the left hip, effective June 18, 2015. He was also in receipt of a temporary total disability evaluation for a left total hip replacement from June 18, 2015 to July 31, 2016. As such, the Veteran meets the schedular criteria for TDIU for the entire rating period prior to August 1, 2016 (since October 11, 2012). VA’s General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Based on the evidence of record, the Board finds that the Veteran’s service-connected disabilities rendered the Veteran unable to obtain or sustain substantially gainful employment for entire rating period prior to August 1, 2016 (since October 11, 2012). The Board finds that the Veteran’s service-connected disabilities, in combination, reflect symptomatology that supports the Veteran’s contentions that he is unable to perform the physical and mental acts required to be employable. See Van Hoose, supra. Therefore, given the evidence, the Board finds that he is entitled to TDIU. REASONS FOR REMAND Entitlement to a rating in excess of 20 percent for compression fracture of the lumbar spine since April 18, 2016 is remanded. The Veteran has received treatment for his lumbar spine at a VA Medical Center, and treatment records through April 2016 are of record. Because more recent records of treatment could bear on the matter of his entitlement to a rating in excess of 20 percent on or after April 18, 2016, efforts must be made to procure them. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA is charged with constructive notice of medical evidence in its possession). As noted, the Veteran was most recently afforded a VA examination of his lumbar spine in April 2016. The Veteran asserts that the symptoms of his service-connected compression fracture of the lumbar spine are more severe than presently evaluated. As such, the Veteran must be provided with examinations which consider the current severity of his service-connected compression fracture of the lumbar spine since April 18, 2016. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). See also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two-year period between the last VA examination and the Veteran's contention that the pertinent disability had increased in severity). In this regard, the Board points out that the United States Court of Appeals for Veterans Claims (CAVC) in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 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 CAVC’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. In light of Correia, the Veteran must be provided VA examinations which provide range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the Veteran’s service-connected compression fracture of the lumbar spine, for the rating period since April 18, 2016. The matter is REMANDED for the following action: 1. Contact the Veteran and request that he identify the names, addresses, and approximate dates of treatment for all VA and non-VA health care providers who have treated him for his service-connected disability on appeal. The Veteran should be requested to sign any necessary authorization for release of medical records to VA, and appropriate steps should be made to obtain any identified records. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. If the records are unavailable, notify the Veteran in accordance with 38 C.F.R. § 3.159. 2. After any additional records are associated with the claims file, the RO should schedule the Veteran for VA thoracolumbar spine examination to ascertain the current severity and manifestations of the Veteran’s service-connected compression fracture of the lumbar spine. The claims file should be made available to the examiners for review in connection with the examinations. The examination reports should include a statement as to the effect of the service-connected compression fracture of the lumbar spine on his occupational functioning and daily activities. In particular, the VA examination must include range of motion testing for the thoracolumbar spine in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing If the examiner 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 VA examiner should provide a complete rationale for any opinions provided. 3. After completing all indicated development, the RO should readjudicate the Veteran’s claim for an increased disability rating for service-connected compression fracture of the lumbar spine. If any of the claim remains denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. (Continued on the next page) GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel