Citation Nr: 1806616	
Decision Date: 02/01/18    Archive Date: 02/14/18

DOCKET NO.  14-06 001	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUES

1.  Entitlement to an initial disability evaluation in excess of 10 percent for the service-connected right lower extremity radiculopathy involving the sciatic nerve.

2.  Entitlement to an initial disability evaluation in excess of 10 percent for the service-connected left lower extremity radiculopathy involving the sciatic nerve.

3.  Entitlement to an initial disability evaluation in excess of 10 percent for the service-connected right lower extremity radiculopathy involving the femoral nerve.

4.  Entitlement to an increased disability evaluation in excess of 20 percent for the service-connected lumbar strain.

5.  Entitlement to an increased disability evaluation in excess of 10 percent for the service-connected limitation of motion of the thoracic spine.


REPRESENTATION

Appellant represented by:	James G. Fausone, Attorney
ATTORNEY FOR THE BOARD

M. Hannan, Counsel


INTRODUCTION

The Veteran appellant served on active duty from in the United States Air Force April 1997 to April 2001.  This case originally came before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. 

In a decision issued in March 2016, the Board, in part, denied a disability evaluation in excess of 20 percent for the lumbar spine and an evaluation in excess of 10 percent for the thoracic spine.  The Veteran then appealed those denials to the United States Court of Appeals for Veterans Claims (Court).  In December 2016, the parties filed a Joint Motion for Partial Remand (JMPR).  A January 2017 Order of the Court granted the JMPR and vacated the portion of the Board's decision that denied increased evaluations for the thoracic and lumbar spine disabilities; those two issues were remanded for readjudication pursuant to the provisions of 38 U.S.C. § 7252(a).  (The Board's denial of an increased evaluation for a service-connected scar was not appealed by the Veteran.  Nor did he appeal the Board's denial of earlier effective dates for the grant of service connection for the right and left sciatic radiculopathy.)

In the March 2016 decision, the Board remanded the issues of increased ratings for the right and left leg radiculopathy.  The Veteran has appealed the initial ratings assigned for the service-connected radiculopathy of the sciatic nerve in each leg.  He is, in effect, asking for higher ratings effective from the date service connection was granted (August 5, 2011).  Thus, the entire time period in question is on appeal.  See Fenderson v. West, 12 Vet. App. 119 (1999).  Likewise, the Veteran has appealed the initial rating assigned for the radiculopathy of the femoral nerve in the right leg that was granted service connection in a rating issued in September 2016, while the case was in remand status.  The Veteran is asking for a higher rating effective from June 6, 2016 (the date service connection was granted).  

The issue of entitlement to an earlier effective date for the grant of service connection for radiculopathy of the femoral nerve in the right lower extremity has been raised by the record in a letter from the Veteran's attorney dated May 22, 2017, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b). 

Neither the Veteran nor his attorney has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017).  Therefore, the issues on appeal are as listed on the title page.

This appeal was processed using the VA paperless claims processing system.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. 

The issues of entitlement to increased ratings for the thoracic and lumbar spine disabilities are addressed in the REMAND portion of the decision below and those two issues are REMANDED to the AOJ.


FINDINGS OF FACT

1.  Between August 5, 2011 and April 6, 2015, the appellant's lumbar spine disability was manifested by radiculopathy that resulted in disability analogous to mild incomplete paralysis of the sciatic nerve in the right leg; moderate incomplete paralysis was not shown during this time period.

2.  Beginning April 7, 2015, the appellant's lumbar spine disability has been manifested by radiculopathy that has resulted in disability analogous to moderate incomplete paralysis of the sciatic nerve in the right leg; moderately severe incomplete paralysis has not been shown since that date.

3.  Throughout this appeal, the appellant's lumbar spine disability has been manifested by radiculopathy that has resulted in disability analogous to mild incomplete paralysis of the sciatic nerve in the left leg; moderate incomplete paralysis has not been shown.

4.  Throughout this appeal, the appellant's lumbar spine disability has been manifested by radiculopathy that resulted in disability analogous to mild incomplete paralysis of the femoral nerve in the right leg; moderate incomplete paralysis has not been shown.


CONCLUSIONS OF LAW

1.  The criteria for an evaluation in excess of 10 percent were not met for the appellant's right lower extremity sciatic nerve disability between August 5, 2011 and April 6, 2015.  38 U.S.C. §§ 1101, 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310(a), 4.14, 4.25, 4.71a, Diagnostic Code 8520 (2017).

2.  Beginning April 7, 2015, the criteria for an evaluation of 20 percent, but not more, were met for the appellant's right lower extremity sciatic nerve disability.  38 U.S.C. §§ 1101, 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310(a), 4.14, 4.25, 4.71a, Diagnostic Code 8520 (2017).

3.  The criteria for an evaluation in excess of 10 percent have not been met for the appellant's left lower extremity sciatic nerve disability at any time during the appeal period.  38 U.S.C. §§ 1101, 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310(a), 4.14, 4.25, 4.71a, Diagnostic Code 8520 (2017).  

4.  The criteria for an evaluation in excess of 10 percent have not been met for the appellant's right lower extremity femoral nerve disability at any time during the appeal period.  38 U.S.C. §§ 1101, 1110, 1131, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 3.310(a), 4.14, 4.25, 4.71a, Diagnostic Code 8526 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  

The appellant's increased rating claims arise from his disagreement with the initial evaluations that was assigned to his right and left leg neurological disabilities following the grant of service connection.  Courts have held that, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven.  As a result, no additional 38 U.S.C. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

In addition, the Board also notes that the appellant has been represented by an attorney during this appeal.  Representation by counsel does not alleviate VA's obligation to provide compliant notice; however, that representation is a factor that must be considered when determining whether that appellant has been prejudiced by any notice error.  An attorney is presumed to know the law and has a duty to communicate about the law to his client.  Overton v. Nicholson, 20 Vet. App. 427, 438-439 (2006).  Finally, the United States Court of Appeals for the Federal Circuit has held that absent extraordinary circumstances, it is appropriate for the Board and the Court to address only those procedural arguments specifically raised by a veteran.  See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).  In this case, neither the Veteran nor his attorney has alleged any prejudice with regard to notice.  

VA must also make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c)(d).  In this case VA medical treatment records have been associated with the claims file and reviewed, as well as lay written statements.  Moreover, the appellant and his attorney have not indicated there is any outstanding evidence relevant to any one of the claims on appeal.

The appellant was afforded VA examinations for his radiculopathy in July 2012, and June 2016.  A medical examination report is adequate for claims purposes when it is based upon consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's "evaluation of the claimed disability will be a fully informed one."  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The medical examinations in this case were rendered by medical professionals, and the associated reports reflect review of the appellant's prior medical records.  The reports include descriptions of the history and symptoms for the claimed radiculopathy and demonstrate objective evaluations.  The examining medical personnel were able to assess the nature, extent and severity of the appellant's radiculopathy. 

The Board finds that the examination reports are sufficiently detailed with recorded history and clinical findings.  In addition, it is not shown either one of the VA examination reports was in any way incorrectly prepared or that the VA medical personnel failed to address the clinical significance of the appellant's radiculopathy.  As a result, the Board finds that additional development by way of another examination would be redundant and unnecessary.  See 38 C.F.R. § 3.326 and 38 C.F.R. § 3.327 and Green v. Derwinski, Vet. App. 121 (1991).  Therefore, the Board concludes that the appellant was afforded adequate clinical examinations.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). 

In light of the foregoing, nothing more is required.  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  

II.  The Merits of the Claims

In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim.  A veteran prevails in either event.  However, if the weight of the evidence is against a veteran's claim, the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

There is a large amount of evidence in this case, consisting of both medical records and lay statements submitted by the appellant.  The Board notes that it has reviewed the evidence in its entirety, but will not be discussing all of it with specificity.  See Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007) (the Board is presumed to have considered all evidence presented in the record; it is not required to specifically discuss every piece of evidence).

In the evaluation of service-connected disabilities, the entire recorded history, including medical and industrial history, is considered so that a report of a rating examination, and the evidence as a whole, may yield a current rating which accurately reflects all elements of disability, including the effects on ordinary activity.  38 C.F.R. §§ 4.1, 4.2, 4.10, 4.41.  While a veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55 (1994). 

In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. 

The Veteran has been service-connected for neurological pathology associated with both lower extremities that emanates from the lumbar spine disability.  The neurologic rating guidelines are found at 38 C.F.R. Part 4; these direct consideration of, among other things, complete or partial loss of use of one or more extremities.  Reference is to be made to the appropriate bodily system of the schedule.  In rating peripheral nerve injuries, attention should be given to the relative impairment in motor function, trophic changes or sensory disturbances.  38 C.F.R. § 4.120.

Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis.  Absent organic changes, the maximum rating will be moderate, unless sciatic nerve involvement is shown.  38 C.F.R. § 4.123.

Neuralgia, cranial or peripheral, is usually characterized by a dull and intermittent pain, of typical distribution, so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis.  38 C.F.R. § 4.124.

For disease of the peripheral nerves, the term "incomplete paralysis" when used with peripheral nerve injuries indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  The ratings for the peripheral nerves are for unilateral involvement, when bilateral the ratings are combined with application of the bilateral factor.  38 C.F.R. § 4.124a.

The Veteran was seen by a VA chiropractor in March 2012.  The Veteran reported experiencing episodic numbness, tingling, weakness and pain in his legs.  On physical examination, sensation was within normal limits in each lower extremity.  Reflexes were decreased on the right and normal on the left.  Muscle strength was 5/5 in each leg.

As previously noted, the Veteran was afforded a VA medical examination in July 2012; the examiner reviewed the appellant's medical history and records.  After examining the appellant, the examining physician rendered a diagnosis of lumbar degenerative joint disease with intervertebral disc syndrome and associated sciatica.  The examiner noted the presence of mild paresthesia of the lower extremities.  The examined stated that the sensory examination was decreased in each lower extremity.  The examiner identified the sciatic nerve as the affected nerve in the right and left legs.

The Veteran was afforded a VA physical therapy consultation in November 2014.  He complained of pain and numbness radiating to each leg intermittently with the right worse than the left.  He reported some intermittent weakness.  The Veteran said that the last pain he experienced in his right leg had been three weeks before.  The physical therapist indicated that the Veteran had paresthesias with the right being worse than the left.

In April 2015, the Veteran was seen for a VA orthopedic surgery consultation; he said that he felt the intensity of his symptoms were the same as in March 2014.  He complained of a burning sensation in his legs and said that the right lower extremity occasionally felt as if it were going to give way.  On physical examination, neither knee jerks nor ankle jerks could be obtained.  The right thigh circumference was one centimeter less than that of the left; the right calf circumference was likewise one centimeter less than that on the left.  

In August 2015, the Veteran underwent neurological testing in a VA facility.  He reported having had recent lower extremity weakness, with the right being worse than the left.  On physical examination, reflexes were absent at the knees and ankles.  Lower extremity strength was decreased in each leg.  Light touch sensation was decreased on the anterior thigh area.  The electromyelogram was normal in the right leg while the nerve conduction studies were normal in the left leg.

The Veteran was afforded another VA examination in June 2016; the examiner reviewed the claims file.  The Veteran reported a new symptom of inner thigh shooting pains as well as his usual sciatic radiculopathy symptoms.  He said that his symptoms were worse on the right side, although he did periodically have symptoms on the left side.  He reported constant pain on the right side that was moderate in degree.  On the left side, the pain was described as mild and intermittent.  There were findings of moderate paresthesias and numbness in the right lower extremity and mild paresthesias and numbness in the left lower extremity.  Reflexes were decreased in each leg.  Sensory testing was decreased in the right leg and normal in the left.  Muscle strength was described as 5/5 in each leg with no muscle atrophy present.  The examiner estimated the severity of the sciatic radiculopathy as moderate in the right lower extremity and mild in the left leg.  The examiner noted the presence of femoral nerve radiculopathy estimated as mild in the right lower extremity.

The Veteran's bilateral sciatic radiculopathy is rated under Diagnostic Code 8520, which provides that a 10 percent evaluation is warranted for mild incomplete paralysis of the sciatic nerve.  A 20 percent evaluation is warranted for moderate incomplete paralysis of the sciatic nerve.  A 40 percent evaluation is warranted for moderately severe incomplete paralysis and a 60 percent evaluation is warranted for severe incomplete paralysis with marked muscular atrophy.  An 80 percent rating is assigned for complete paralysis, which is characterized by foot dangle and drop, no active movement possible of muscles below the knee, and flexion of knee weakened or (very rarely) lost.  No complete paralysis has been demonstrated.

The Board notes that words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, VA must evaluate all evidence to the end that decisions will be equitable and just.  38 C.F.R. § 4.6.  Although the use of similar terminology by medical professionals should be considered, the use of such terminology is not dispositive of an issue.  Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating.  38 U.S.C.A. § 7104; 38 C.F.R. § §§ 4.2, 4.6.  

Based on the objective evidence of decreased deep tendon reflexes, decreased sensation, an occasional feeling that the right leg will give way, decreased thigh and calf circumferences, the presence of moderate paresthesias and the Veteran's chronic moderate pain, the Board concludes that the Veteran's right leg radiculopathy has been manifested by at least moderate incomplete paralysis of the sciatic nerve since the finding of the decreased thigh and calf circumferences and, as such, a 20 percent evaluation is warranted effective April 7, 2015, but not before.  In addition, the Board finds that moderately severe incomplete paralysis has not been demonstrated since that time.

The Board also concludes that the right leg radiculopathy is worse than the left leg and that said radiculopathy of the sciatic nerve in the left leg has been mild throughout the appeal period.  Moderate incomplete paralysis of the left sciatic nerve has not been shown.  In addition, VA treatment records dated throughout the appeal period do not document findings reflecting moderate symptomatology such as were noted in the right leg.  Therefore, the next higher evaluation (20 percent) is not warranted.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 

Furthermore, the Board finds that an initial evaluation in excess of 10 percent for incomplete paralysis of the femoral nerve in the right lower extremity is not warranted based on the findings of the June 2016 VA examination.  The applicable code is Diagnostic Code 8526 which allows for a 10 percent rating for mild incomplete paralysis of the anterior crural nerve (femoral), a 20 percent evaluation for moderate incomplete paralysis and a 30 percent evaluation for severe incomplete paralysis.  A maximum 40 percent rating requires complete paralysis.  38 C.F.R. § 4.124a, Diagnostic Code 8526.  The Board finds that, based on the appellant's new complaint of pain in the inner thigh, the right lower extremity involvement of the femoral nerve is mild.  The VA examination results do not demonstrate moderate right leg involvement of the femoral nerve.

Finally, based upon the guidance of the United States Court of Appeals for Veterans Claims (Court) in Fenderson v. West, 12 Vet. App. 119 (1999), the Board has considered whether any staged rating is appropriate for any one of the disabilities discussed above.  As reflected in the decision above, the Board did find variation in the appellant's right sciatic nerve symptomatology and clinical findings that warranted the assignment of a staged rating, as the Court has indicated can be done in this type of case.  The Board has assigned an increased evaluation of 20 percent beginning on April 7, 2015.  However, based upon the record, the Board finds that at no time during the claim/appellate period have the left sciatic nerve or right femoral nerve disabilities on appeal been more disabling than as initially/currently rated (10 percent each).


ORDER

An initial disability evaluation in excess of 10 percent for the neurological manifestations of the lumbar spine disability in the sciatic nerve of the right leg is denied for the period from August 5, 2011 to April 6, 2015.

Beginning April 7, 2015, a disability evaluation of 20 percent for the neurological manifestations of the lumbar spine disability in the sciatic nerve of the right leg is granted, subject to the law and regulations governing the award of monetary benefits.

An initial disability evaluation in excess of 10 percent for the neurological manifestations of the lumbar spine disability in the sciatic nerve of the left leg is denied.

An initial disability evaluation in excess of 10 percent for the neurological manifestations of the lumbar spine disability in the femoral nerve of the right leg is denied.


REMAND

As reflected by the December 2016 JMPR, it was determined that the Board had relied on the July 2012 examination results which did not include an opinion as to decreased functioning (such as additional loss of range of motion) during flare-ups.  This was the basis for concluding that inadequate reasons and bases had been provided by the Board.

Review of the evidence of record reveals that the appellant was last afforded a VA examination for the spine in July 2012.  VA's duty to assist includes the conduct of a thorough and comprehensive medical examination.  Robinette v. Brown, 8 Vet. App. 69 (1995).  When available evidence is too old for an adequate evaluation of the veteran's current condition, VA's duty to assist includes providing a new examination.  Weggenmann v. Brown, 5 Vet. App. 281 (1993).  Here, the appellant's last VA examination is stale as it took place more than five-and-a-half years ago.  Because there may have been a significant change in the appellant's condition during the past six years, a new examination is in order.  In addition, all medical records relating to the appellant's orthopedic spine status not already of record must be identified, obtained and associated with the claims file.

In addition, a precedential opinion that directly impacts this case has been issued by the United States Court of Appeals for Veterans Claims (Court).  In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities.  The final sentence provides that "[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 Court found that, 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 38 C.F.R. § 4.59.  

The July 2012 VA examination report does not comply with Correia.  On remand, the VA examination ordered herein must comply with Correia.  See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).  

Review of the claims file reveals that no medical treatment records dated after May 2016 have been included in the evidence of record.  Because such records could reflect the extent and severity of the claimed disabilities, VA is, therefore, on notice of records that may be probative to the claims.  See Robinette v. Brown, 8 Vet. App. 69 (1995).  VA has a responsibility to obtain records generated by Federal government entities that may have an impact on the adjudication of a claim.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Thus, on remand, all outstanding VA medical treatment records, and private records, if any, should be identified, obtained and associated with the evidence of record.

These considerations require the gathering of medical records and further investigation by medical professionals, inasmuch as the Board is prohibited from substituting its own unsubstantiated medical opinions.  See Colvin v. Derwinski, Vet. App. 171, 175 (1991).  In addition, the duty to assist includes obtaining medical records and examinations where indicated by the facts and circumstances of an individual case.  See Murphy v. Derwinski, 1 Vet. App. 78 (1990).  

Therefore to ensure that VA has met its duty to assist in developing the facts pertinent to the claim on appeal and to afford the appellant full procedural due process, the case is REMANDED for the following:

1.  Ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A and the implementing regulations found at 38 C.F.R. § 3.159 is completed. 

2.  Undertake appropriate development to obtain any outstanding medical treatment records pertinent to the Veteran's claims, to include any VA treatment records dated from May 2016 onwards.

3.  To the extent an attempt to obtain any of these records is unsuccessful, the claims file must contain documentation of the attempts made.  The Veteran and his attorney must also be informed of the negative results and be given the opportunity to secure the records.

4.  Thereafter, schedule the Veteran for examination by a VA orthopedic examiner to determine the nature, severity, and extent of his current and historic thoracic spine pathology and his current and historic lumbar spine pathology.  The entire claims file must be reviewed, to include the Veteran's lay statements and assertions.  If the examiner does not have access to the electronic file, any relevant records contained in the electronic file that are not available must be otherwise made available to the examiner.

All indicated tests should be accomplished and all clinical findings should be reported in detail.  All pertinent imaging results such as X-ray, CT scan and/or MRI results should be discussed by the examiner.  After examining the Veteran and reviewing his claims file, the examiner must provide a comprehensive report including complete description of the nature, extent, severity and historical progression of all orthopedic aspects of the Veteran's thoracolumbar pathology.  In responding to this inquiry, the examiner must acknowledge and discuss the Veteran's statements relating to his spine.

In particular, the examiner must identify objective orthopedic manifestations attributable to the appellant's service-connected thoracolumbar spine disabilities.  Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner must record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing.  If the back cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done.  

The examiner must record whether the thoracolumbar spine exhibits weakened movement, excess fatigability, or incoordination; and if so, the examiner must describe the nature and severity thereof.  Any musculoskeletal dysfunction involving the thoracolumbar spine must be described in detail. 

The examiner must describe to what extent, if any, the appellant has any thoracolumbar spine deformity, any degenerative changes, an altered gait or reduced function in the lower body due to a service-connected disability.  Whether there is any pain, weakened movement, excess fatigability or incoordination on movement should be noted, and whether there is likely to be additional range of motion loss due to any of the following should be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination.  The examiner must be requested to describe whether any reported pain significantly limits the function of the appellant's back during flare-ups or when the back is used repeatedly.  

Any limitation of back function must be clearly identified.  If there is no pain, no limitation of motion and/or no limitation of function, such facts must be noted in the report. 

The examiner is requested to specify the frequency and duration of any "periodic flare-ups" and the effect the service-connected thoracic and lumbar spine disabilities each have upon appellant's daily activities.  

To the extent possible, the examiner should discuss whether or not the appellant's thoracic and lumbar spine disabilities have worsened or remained static since August 2011, to include an estimation of the appellant's decreased function during flare-ups since August 2011 expressed, for example, in terms of additional loss of degrees of range of motion due to pain.

5.  Upon receipt of the VA examination report, conduct a review to verify that all requested findings have been included.  If information is deemed lacking, refer the report to the VA examiner for corrections or additions.  See 38 C.F.R. § 4.2. 

6.  After all appropriate development has been accomplished, review the record, including any newly acquired evidence, and re-adjudicate the claims on appeal.  This adjudication must reflect consideration of all the evidence of record and be accomplished with application of all appropriate legal theories and Diagnostic Codes, including, but not limited to, 38 C.F.R. §§ 4.10, 4.40, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Correia v. McDonald, 28 Vet. App. 158 (2016), and Hart v. Mansfield, 21 Vet. App. 505 (2007).

7.  If any benefit sought on appeal remains denied, provide the appellant and his attorney a Supplemental Statement of the Case (SSOC) and wait an appropriate period of time for response.  

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

The appellant is hereby notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of a claim.  38 C.F.R. § 3.158 and 38 C.F.R. § 3.655.

Thereafter, the case should be returned to the Board, if in order.  The Board intimates no opinion as to the ultimate outcome of this case.  The appellant need take no action unless otherwise notified. 

These claims 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).




______________________________________________
DEBORAH W. SINGLETON
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs