Citation Nr: 1806592 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 15-31 797 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine with intervertebral disc syndrome (IVDS) associated with status post left knee arthroplasty with a residual scar. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Wishard, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran had active military service from June 1960 to May 1963. This matter comes before the Board of Veterans' Appeals (Board) from a September 2014 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Muskogee, Oklahoma. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The most recent Disability Benefits Questionnaire (DBQ) examination report is from September 2014. The Board finds that the Veteran should be afforded another examination which complies with the Court's opinion in Correia v. McDonald, 28 Vet. App. 158 (2016) as it relates to 38 C.F.R. § 4.59, which requires that VA examinations include testing for pain on both active and passive motion, and both weight-bearing and non-weight-bearing. Moreover, if reasonably possible, the examiner should provide a retrospective opinion which identifies factors noted in Correia as they pertain to the September 2014 evaluation. In addition, the Board notes that the September 2014 examiner stated, with regard to flare-ups, that the Veteran's overall functional impairment is limited prolonged sitting, standing, bending, and lifting. The examiner stated that the degree of loss could only be speculated. The record does not reflect the frequency, duration, alleviating, or precipitating factors for the Veteran's flare-ups. In Sharp v. Shulkin, No. 16-1385 (September 6, 2017), the Court held that the Board may accept a VA examiner's assertion that he or she cannot offer such an opinion without resort to speculation only after it determines that the examiner's conclusion is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. It must be clear that such an opinion is not procurable based on a lack of knowledge among the "medical community at large" and not merely on a lack of expertise, insufficient information, or unprocured testing on the part of the specific examiner. Thus, the Board finds that it might be helpful for the newly scheduled examiner to ascertain information with regard to flare-ups such as frequency, duration, alleviating, or precipitating factors. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Associate with the claims file any outstanding pertinent treatment records, including additional VA treatment records, if any, (such as those that may have been created since the last such update of the claims file). 2. Schedule the Veteran for a VA examination to determine the current extent of his service-connected degenerative disc disease of the lumbar spine with intervertebral disc syndrome. In particular, the examiner is requested to: a. Test the range of motion of the Veteran's back in active motion, passive motion, weight-bearing, and non-weight-bearing, if possible. 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. b. The examiner should consider the Veteran's reports of flare-ups (to include frequency, duration, alleviating events, and precipitating events of such) and portray any related functional loss in terms of additional range of motion loss. If the examiner is unable to do so, the examiner must indicate why. c. The examiner should review the prior VA examination report from 2014 and provide a retrospective opinion, if reasonably possible, which identifies the range of motion of the Veteran's back in active motion, passive motion, weight-bearing, and non-weight-bearing. If it is not possible to provide such an opinion without resorting to mere speculation, please so state and provide an explanation as to why an opinion cannot be given. 3. Following completion of the above, readjudicate the issue on appeal. If the benefit sought is not granted, issue a Supplemental Statement of the Case and afford the appellant and his representative an appropriate opportunity to respond. Thereafter, the case should be returned to the Board, as appropriate for further appellate consideration The appellant 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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).