Citation Nr: 1807812 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-32 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Evaluation of lumbosacral strain with intervertebral disc syndrome, currently rated as 20 percent disabling. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his daughter ATTORNEY FOR THE BOARD Jeremy J. Olsen, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1976 to June 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Jurisdiction over the claim has since been transferred to the RO in Los Angeles, California. In January 2018, the Veteran and his daughter testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of that hearing has been associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND At the January 2018 hearing, the Veteran testified that his service-connected lumbosacral strain with intervertebral disc syndrome (hereinafter "back disability") had worsened since his most recent examination, in August 2013. He reported that, in addition to increased pain, he had begun to experience neurological complications related to control of his bowels. Given the credible allegations of worsening, the Board finds that a more contemporaneous examination is needed to fully and fairly evaluate the Veteran's claim for an increased rating for his back disability. See 38 C.F.R. §§ 3.326, 3.327 (re-examinations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect); Allday v. Brown, 7 Vet. App. 517 (1995) (where the record does not adequately reveal current state of disability, fulfillment of duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). Furthermore, the Board finds that a remand is also required so that range of motion testing can be conducted pursuant to a recent decision issued by the United States Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016). In this regard, the Court has held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations 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, 28 Vet. App. at 158. Upon a review of the previous VA examinations currently of record, to include the most recent examination in August 2013, it does not appear that such testing was conducted, or that the VA examiner explained why such testing could not be conducted, or was not necessary. Therefore, a remand is also necessary in order to afford the Veteran a new VA examination so as to address such inquiries. 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. Provide the Veteran with an appropriate VA examination to determine the current nature and severity of his lumbar spine disability. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should describe the nature and severity of all manifestations of the Veteran's lumbosacral strain with intervertebral disc syndrome. He or she should state whether there is any evidence of favorable or unfavorable ankylosis of the lumbar spine. Range of motion studies should also be performed, and, if pain on motion of the lumbar spine is shown, the examiner must state at what degree the pain begins. The examiner should record the results of range of motion testing for pain on both active and passive motion, on weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged 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. The examiner must also state whether there is weakened movement, excess fatigability, or incoordination attributable to the service-connected lumbar spine disability. An opinion must be stated as to whether any lumbar spine pathology, including pain, can significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional limitation of motion due to pain on use or during flare-ups. The examiner should also identify any neurological abnormalities associated with the service-connected lumbar spine disability, to include any associated bladder or bowel impairment or radiculopathy, and provide findings necessary to rate any such impairment found. The examiner should consider all evidence of record, including lay statements and medical records. Any opinions offered should be accompanied by clear rationale consistent with the evidence of record. 2. Readjudicate the appeal. The Veteran has the right to submit additional evidence and argument on the matter or 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. §§ 5109B, 7112 (2012). _________________________________________________ L.M. BARNARD 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 this appeal. 38 C.F.R. § 20.1100(b) (2017).