Citation Nr: 1806823 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 08-36 450 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for thoracic somatic dysfunction with muscle spasms (hereinafter thoracic spine disability). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 20, 2014. REPRESENTATION Veteran represented by: New Jersey Department of Military and Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Hendricks, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1989 to July 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in May 2014. This case was before the Board in March 2012 and December 2014. In the December 2014 remand, the Board exercised jurisdiction over a TDIU claim, finding that claim was part and parcel of the Veteran's increased rating claim for his thoracic spine disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). During the pendency of the appeal, in a November 2015 rating decision, the AOJ granted entitlement to TDIU, effective November 20, 2014. However, as the Veteran has contended that he became too disabled to work as of August 2014, the Board has retained jurisdiction over the TDIU claim, and recharacterized the issue on appeal in order to comport with the November 2015 award of benefits. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In a recent holding, the United States Court of Appeals for Veterans Claim (Court) held that 38 C.F.R. § 4.59 requires that VA joint examinations must, where possible, include range of motion results for pain on both active and passive motion, in weightbearing and non-weightbearing, and if possible, with the range of the opposite undamaged joint where applicable. Correia v. McDonald, 28 Vet. App. 158 (2016). The Board notes that the Veteran's last VA examination in May 2015 of his thoracic spine disability did not include the range of motion testing results required by Correia. Additionally, at the beginning of the May 2015 examination report, the VA examiner indicated the Veteran's thoracic spine diagnoses included intervertebral disc syndrome. However, later in the examination report, the examiner also stated the Veteran did not have intervertebral disc syndrome or any incapacitating episodes. Consequently, the Board finds that the May 2015 examination is inadequate for rating purposes, and a remand is necessary in order for another VA examination that comports with the requirements of Correia, as well as clarifies whether the Veteran's thoracic spine diagnoses include intervertebral disc syndrome. See 38 C.F.R. § 4.59, Correia, supra; Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Court recently issued an opinion addressing whether a VA examiner is permitted to decline to offer an estimate as to additional functional loss during flare-ups if the veteran is not undergoing a flare-up at the time of the examination. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (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. Accordingly, in directing the needed new VA examination in this case, the Board shall also present instructions to ensure compliance with the recent holding in Sharp. Respecting the Veteran's TDIU claim, the Board must also remand that claim as it is intertwined with the above remanded claim. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). On remand, any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A (b), (c); 38 C.F.R. § 3.159 (b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the case is REMANDED for the following action: 1. Obtain any and all outstanding VA treatment records from the East Orange and Brick VA Medical Centers, or any other VA medical facility that may have treated the Veteran, and associate those documents with the claims file. 2. Schedule the Veteran for a VA examination to determine the current severity of his thoracic spine disability. The examiner should identify and completely describe all current symptomatology. The examiner should specifically state range of motion findings for the Veteran's thoracic spine. Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner should record the results of range of motion testing for pain (1) on BOTH active and passive motion AND (2) in weightbearing and non-weightbearing. If the examiner is unable to conduct the required testing he or she should clearly explain why that is so. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups (if flare-ups are reported by the Veteran). The examiner should assess or estimate the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the Veteran is not having a flare-up when examined, the examiner should determine whether he or she can estimate, given the Veteran's description of symptoms, what his range of motion would be on flare-up. If it is not feasible to offer such an opinion to any degree of medical certainty without resort to speculation, the examiner must provide a specific explanation for why this is so. If such an opinion is not procurable based on a lack of knowledge, then the inability to offer such an opinion must be based on a lack of knowledge among the "medical community at large," and not merely a lack of expertise, insufficient information, or unprocured testing on the part of the examiner. Lastly, the examiner must clarify whether the Veteran has intervertebral syndrome; if so, the examiner must state whether the Veteran experiences incapacitating episodes, as defined by 38 C.F.R. § 4.71a, and the frequency and total duration of such episodes over the course of the past 12 months. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 3. If the benefits sought remain denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. The Veteran has the right to submit additional evidence and argument on the matters 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. HYLAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 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).