Citation Nr: 1806403 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 14-05 369 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an initial increased evaluation for a low back disability, currently rated as 10 percent prior to March 29, 2009 and 20 percent thereafter. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel INTRODUCTION The Veteran served in active duty from January 1970 to March 1971 and was awarded the National Defense Service Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. The issues of entitlement to service connection for neck and upper back disabilities have been raised by the record in November 2013, February 2014, and February 2017 correspondence and at the February 2017 hearing, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although further delay is regrettable, the Board finds that additional development is required before the Veteran's claim for an initial increased evaluation for a low back disability may be decided. The Veteran's statements at the February 2017 Board hearing, including his reports of impaired sleep due to his low back disability, suggest the severity of his disability may not be adequately demonstrated in the evidence currently of record. Accordingly, the Veteran should be afforded a new VA examination to assess the current nature, extent, and severity of his service-connected low back disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The United States Court of Appeals for Veterans Claims (Court) held that to be adequate a VA examination of the joints must, wherever possible, 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. See Correia v. McDonald, 28 Vet. App. 158 (2016). In addition, assignment of a disability rating should take into account consideration of limitation of functional ability during flare-ups or when a joint is used repeatedly over a period of time. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). As the March 2009 and April 2013 VA examinations do not include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, with range of motion measurements of the opposite undamaged joint, pursuant to Correia, a retrospective opinion for the Veteran's service-connected low back disability is necessary and should address prior: range of motion; painful motion; additional loss of motion after repetitions; and functional loss due to pain - considering active and passive motion as well as weight-bearing and nonweight-bearing considerations - for the period since June 22, 2000. The retrospective opinion should also include paired joints. The examination should also identify any neurological impairments associated with the Veteran's service-connected low back disability. Updated VA treatment records and private treatment records should also be requested on remand. 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of any medical provider, VA or private, who has treated him for his low back disability. After securing any necessary releases, the AOJ should request any relevant records identified that are not duplicates of those already contained in the claims file. Additionally, obtain VA treatment records from September 2015 to the present. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 2. After completing the above actions, the AOJ should schedule the Veteran for a VA examination to determine the current severity of his service-connected low back disability. The claims file should be made available to and reviewed by the examiner. a. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. b. The examiner should also test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for both the joint in question and any paired joint. 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. c. The examiner should also identify any neurological impairment(s) associated with the Veteran's service-connected low back disability, or any impairment manifested by pain and numbness, and describe any symptoms and functional limitations associated with such impairment(s). Please specifically address whether the Veteran has any bladder impairment associated with his low back disability. d. The examiner should also provide a retrospective opinion as to the range of motion throughout the appeal period (since June 2000) of the low back in (1) active motion, (2) passive motion, (3) in weight-bearing, (4) in nonweight-bearing, and (5) with the range of the opposite undamaged joint. A rationale for any opinions expressed should be set forth. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). e. Finally, the examiner should provide an opinion as to the functional limitations the Veteran has experienced as a result of his service-connected low back disability and what impact, if any, those have on his occupational functioning. Please also address if the Veteran has any sleep impairment or discomfort associated with his service-connected low back disability, separate and apart from any sleep impairment or disorder associated with service-connected cognitive disorder with depressive disorder. All objective and subjective symptoms should be reported in detail. 3. After completing the requested actions, and any additional action deemed warranted, the AOJ should readjudicate the claim on appeal. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).