Citation Nr: 18161142 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-61 349 DATE: December 28, 2018 REMANDED Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine (back disability) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from August 1976 to August 1979 and from April 1980 to November 2004. This claim comes before the Board of Veterans’ Appeals (Board) on appeal of a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Veteran’s claim for service connection for a back disability was granted in an October 2013 rating decision and a 10 percent rating was awarded under 38 C.F.R. §4.71a, Diagnostic Code 5242. The Veteran received a VA back examination in April 2014 and a May 2014 rating decision then increased the back rating to 20 percent effective November 2013. In response to the May 2014 rating decision, the Veteran filed a notice of disagreement requesting an additional rating increase. The Veteran received another VA back examination in September 2015. The Veteran alleges that his service-connected back disability is worse than reflected by his currently assigned rating. The United States Court of Appeals for Veterans Claims has held that when a Veteran alleges that his service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment, particularly if there is no additional medical evidence which addresses the level of impairment of the disability since the previous examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Subsequent to the Veteran’s last examination in September 2015, the Veteran received an MRI and medical opinions suggesting an increase in severity of his service-connected back disability. See Medical Treatment Records and Third-Party Correspondences submitted in September 2015, January 2016, and April 2016. Moreover, these treatment records raise the possibility of an intervertebral disc syndrome (IVDS) diagnosis. As such, an additional option for an increased rating under Diagnostic Code 5243 may be available. 38 C.F.R. § 4.71a. The April 2014 and September 2015 VA spine examinations did not find evidence of IVDS. No imaging studies were reviewed in either examination. Additionally, the Board notes that the Veteran has raised issues regarding the adequacy of the May 2015 VA examination. The Veteran stated that the examiner reported, but did not conduct, range of motion measurements and other assessments of his back disability. See Form 9, December 2017. When VA undertakes to provide a medical examination, it must ensure that the examination and opinions therein are adequate. Barr v. Nicholson, 21 Vet. App. 303, 311(2007). The U.S. Court of Appeals for Veterans Claims has held that in order "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 § 4.59." Correia v. McDonald, 28 Vet. App. 169-170 (2016). If the examiner failed to conduct range of motion testing, the May 2015 examination is inadequate. Therefore, as the Veteran asserts that his service-connected disability has worsened since his last examination, as treatment records and diagnostic imaging appear to support this assertion, and as the Veteran has raised issue with the adequacy of the most recent VA examination; the Board finds that the Veteran should be afforded a VA examination to reliably assess the current nature, extent, and severity of his back disability. The Board regrets further delay, but additional development is necessary before adjudicating this claim. The Board also finds that the Veteran should be contacted and asked to clarify whether he wishes to appear at a hearing before the Board. The record currently contains two VA Form 9s pertaining to the appeal for entitlement to a rating in excess of 20 percent for his service-connected back disability. The first Form 9 was timely filed on December 12, 2016, and the Veteran indicated that he did not wish to appear at a hearing before the Board. The appeal was certified to the Board on December 12, 2017, and the certification form indicated that the Veteran did not request a hearing. A second Form 9 was filed on December 22, 2017, as a response to the November 27, 2017 Supplemental Statement of the Case. On the second Form 9, the Veteran expressed a desire to appear at a hearing before the Board by videoconference at a local VA office. No further mention is made of the hearing request by the Veteran or VA, and the Board finds that clarification is required. To the extent 38 C.F.R. § 19.9 (d) provides that clarification of hearing requests are exempt from remand, the Board notes that this case already requires a remand to provide a VA examination. Clarifying the Veteran's hearing request at the Board would result in needless delay and the Veteran is better served by clarification of his hearing request through the AOJ. The matter is REMANDED for the following action: 1. Contact the Veteran and ask that he clarify whether he desires a hearing before the Board by videoconference at the local VA office addressing the issue of entitlement to a rating in excess of 20 percent for his service-connected back disability. 2. If the Veteran still wishes to appear at a hearing before the Board, schedule a hearing before a Veterans Law Judge of the Board following the usual procedures. The Veteran must receive notice of the hearing at his current address of record. Obtain the Veteran’s updated VA treatment records and associate them with the evidence of record. If possible, the Veteran himself should submit these records (if any), and any other new treatment for this problem, himself, to expedite the case. Any assistance on this issue would be appreciated. 3. Afford the Veteran the appropriate VA examination to determine the current nature, extent, and severity of his service-connected back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria, including IVDS. All appropriate testing, including range of motion, should be performed. The examiner must 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 Veteran’s back disability and discuss the effect of the Veteran’s back disability 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). 4. Thereafter, readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. JOHN J CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. E. VanValkenburg, Associate Counsel