Citation Nr: 1807524 Decision Date: 02/06/18 Archive Date: 02/14/18 DOCKET NO. 14-04 272 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S.S. Mahoney, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1996 to January 1997 and from January 1998 to July 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran was afforded VA examinations in connection with his service-connected back disability in March 2012 and October 2016. These examinations do not comply with Correia v. McDonald, 28 Vet. App. 158 (2016). Also, the 2016 VA examiner noted that the Veteran did not report flare-ups, contradicting the Veteran's description of flared pain that the examiner noted within the same examination report, in addition to the findings in the March 2012 examination report and the Veteran's reports of missing work due flare-ups. See January 2014 VA Form 9. Thus, a new examination is needed, that includes a Correia-compliant retrospective opinion, as well as a retrospective opinion that complies with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), considering the Veteran's reports of flare-ups. Any outstanding treatment records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding private treatment records. 3. Then schedule the Veteran for a VA examination to determine the current nature and severity of his back disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. 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. Considering the Veteran's reported history, please also provide an opinion describing functional impairment of the Veteran's lumbar spine due to flare-ups since December 2011, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. Please refer to the 2012 and 2016 VA examination reports. If unable to provide such an opinion without resorting to speculation, please provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A complete rationale shall be given for all opinions and conclusions expressed. 4. Then, after taking any additional development deemed necessary, readjudicate the issue on appeal. 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).