Citation Nr: 18159846 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 16-56 475 DATE: December 20, 2018 REMANDED Entitlement to an evaluation in excess of 20 percent for back disability is remanded. Evaluation in excess of 10 percent for residuals of a right knee disability is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1997 to July 2001 and from April 2003 to April 2004 in the United States Marine Corps. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision issued by the Department of Veterans Affairs (VA). 1. Entitlement to an evaluation in excess of 20 percent for thoracolumbar spine spasms is remanded. 2. Evaluation in excess of 10 percent for residuals of a right knee strain with meniscal tear is remanded. Issues 1-2. The Veteran contends that his back condition is more severe than the 20 percent he is currently assigned for thoracolumbar spine spasms. 38 C.F.R. §4.71, DC 5237. On his November 2016 Form 9, he endorsed that he has been forced to take a reduction in employment potential because his back condition. He noted that he was unable to continue working, missed extended periods of work due to his back condition, and was out of work from 2015 through 2016. The Veteran contends that his right knee disability is more severe than the 10 percent he is currently assigned. 38 C.F.R. 4.71, DC 5260. On his November 2016 Form 9, he noted that he had to take significant time off of work because of his ‘severe’ knee pain that worsened due to his job responsibilities that included bending, stooping, walking, lifting, and prolonged stranding. The Board finds that there is an indication that the Veteran’s service connected thoracolumbar spine and right knee disabilities may have worsened. To ensure that the record indicates the current severity of the Veteran’s musculoskeletal symptomatology, including his spine and right knee disabilities, a more contemporaneous examination is warranted. Green v. Derwinski, 1 Vet. App. 121 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994); see also Snuffer v. Gober, 10 Vet. App. 400 (1997) (finding Veteran entitled to new examination when Veteran contended that disability worsened). The Veteran’s most recent VA spine examination in May 2014 revealed no presence of intervertebral disc disease, radiculopathy, or incapacitating episodes associated with his thoracolumbar back strain disability as endorsed by the examiner. The Veteran has continued to receive treatment for his thoracolumbar spine with complaints noted for pain in his low back area with numbness radiating to his calf region. The Veteran’s most recent VA knee examination in May 2014 revealed residual symptoms of pain from a right knee strain and meniscal tear. No functional impairment or flare-ups were noted by the examiner. Additionally, the Board notes that the Court recently suggested that the plain language of 38 C.F.R. § 4.59 indicates that it is potentially applicable to the evaluation of musculoskeletal disabilities involving joint or periarticular pathology that are painful, whether or not evaluated under a diagnostic code predicated on range of motion measurements. See Correia v. McDonald, 28 Vet. App. 158 (2016); Southall-Norman v McDonald, 28 Vet. App. 346 (2016). The Board notes that the May 2014 VA examinations involving the Veteran’s musculoskeletal disabilities, including right knee and thoracolumbar spine, were not performed under the Correia requirements that have been amended since the 2016 decision. As such new VA examinations assessing the Veteran’s back (thoracolumbar spine) and right knee are required to adequately assess his current level of severity. With the indication of worsening of the Veteran’s right knee and spine disabilities and the requirement for additional development to have the musculoskeletal examination comply with Correia requirements, remand is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his thoracolumbar back spasms disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to his back disability alone and discuss the effect of the Veteran’s thoracolumbar back spasms on any occupational functioning and activities of daily living. 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 state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for an examination of the current severity of residuals from a right knee strain with meniscus tear disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the right knee disability alone and discuss the effect of the Veteran’s right knee, including any residual symptoms, on any occupational functioning and activities of daily living. 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 state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page)   3. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. A. Macek, Associate Counsel