Citation Nr: 18161284
Decision Date: 12/31/18	Archive Date: 12/31/18

DOCKET NO. 17-09 226
DATE:	December 31, 2018

REMANDED

Entitlement to a rating in excess of 20 percent for service-connected osteoarthritis of the thoracolumbar spine with degenerative disc disease of the thoracic spine and lumbar intervertebral disc syndrome ("spine condition") from September 24, 2014 is remanded.

REASONS FOR REMAND

The Veteran served on active duty from January 1986 to January 2006.

Upon review of the record, the Board finds that the issue must once again be remanded.  The Board sincerely regrets the additional delay caused by this remand, but wishes to assure the Veteran that it is necessary for a full and fair adjudication of her claim.

1. Entitlement to a rating in excess of 20 percent for service-connected spine condition from September 24, 2014 is remanded.

The Board finds that a new examination is warranted for the Veteran’s claim.  The Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities.  Correia v. McDonald, 28 Vet. App. 158 (2016).  The final sentence of § 4.59 reads “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.”  The January 2015 and December 2015 examinations on file have not met this requirement.  In addition, examiners are required to ascertain adequate information regarding the Veteran’s flare-ups and “estimate the functional loss that would occur during flares.”  Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017).  Although both examinations referenced the Veteran suffering from flares, there was no estimate of functional loss resulting from flares.  Thus, remand is required for an examination that includes all necessary testing and opinions.

Accordingly, the Board finds a remand is warranted for further evidentiary development.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence . . . is essential for a proper appellate decision”).

The matter is REMANDED for the following action:

1. Assist the Veteran in associating with the claims folder updated treatment records.

2. After any additional records are associated with the claims file, schedule the Veteran for a VA examination to ascertain the current severity and manifestations of the Veteran’s service-connected spine condition.  The claims file should be made available to the examiner for review in connection with the examination. 

The examiner should provide findings as to the range of motion of the spine, including flexion and extension.  Additionally, the examiner must include range of motion testing in the following areas:

• Active motion;

• Passive motion;

• Weight-bearing; and

• Nonweight-bearing.

The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination.  In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the spine 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.  IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES.  EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED.

The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. 

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 examiner should also comment on the impact of the Veteran’s spine on her ability to work. 

The examiner must provide a complete rationale for all the findings and opinions.

 

A. S. CARACCIOLO

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	R. Gandhi, Associate Counsel