Citation Nr: 1807883 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-24 894A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease and chronic strain of the lumbar spine (hereinafter a lumbar spine disability). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Hendricks, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1999 to August 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 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 April 2017. The Board has taken jurisdiction over a claim for TDIU at this time in order to comport with the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veteran's last VA examination of her lumbar spine disability was in March 2016. During that examination, the examiner noted the Veteran had no flare-ups, incapacitating episodes, or any functional loss or functional impairment of the lumbar spine. Further, she noted the Veteran had no radiculopathy of the bilateral lower extremities. However, subsequent to the March 2016 VA examination, the Veteran and her private physician indicated the Veteran has incapacitating episodes and flare-ups that cause additional functional loss and/or functional impairment of the lumbar spine. Additionally, in a June 2017 lumbar spine disability benefits questionnaire, the Veteran's private physician noted the Veteran has mild paresthesia and/or dysesthesias of her bilateral lower extremities. Thus, it appears the Veteran's lumbar spine disability has worsened since her last VA examination. Moreover, 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 March 2016 of her lumbar spine disability did not include the range of motion testing results required by Correia. Consequently, the Board finds that a remand is necessary in order to afford the Veteran another VA examination that adequately addresses the current severity of her lumbar spine disability, and that comports with the requirements of Correia. See 38 C.F.R. § 4.59, Correia, supra; Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board also notes 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 the TDIU claim as that claim 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). Nevertheless, on remand, the AOJ should fully develop the TDIU claim, to include providing the Veteran with the appropriate notice and obtaining the appropriate documentation, to include a VA Form 21-8940, from the Veteran, respecting that claim. 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 VA treatment records from the Carl Vinson VA Medical Center, 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 her lumbar 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 lumbar 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. Additionally, the examiner should address any neurological complications associated with her lumbar spine disability, to include any radiculopathy, or bowel or bladder dysfunction that may be related to the Veteran's lumbar spine disability. In doing so, the examiner should specifically discuss the June 2017 lumbar spine disability benefits questionnaire that indicated the Veteran had mild paresthesia and/or dysesthesias of her bilateral lower extremities. 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 her 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. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 3. The AOJ should properly complete development of the TIU claim, to include providing the Veteran with VCAA notice and a VA Form 21-8940, as appropriate. 4. If the benefits sought remain denied, the Veteran and her 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. §§ 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).