Citation Nr: 1808713 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 10-13 140 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a disability rating in excess of 10 percent prior to August 31, 2017 and in excess of 20 percent from that date forward for lumbosacral strain with wedging of the thoracic vertebrae. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. McDuffie, Associate Counsel INTRODUCTION The Veteran served on active duty from April 2003 to April 2005 and from November 2006 to March 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The issue on appeal was last before the Board in July 2017 when it was remanded for additional evidentiary development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim and that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran was last afforded a VA examination in August 2017 to assess the current severity of his back disability. However, the examination report does not specify whether range of motion was active or passive. Further, the examiner noted that there was pain on weight bearing, but no further comment or explanation was provided. See August 2017 Compensation and Pension Examination. In Correia v. McDonald, the Court of Appeals for Veterans Claims (Court) found 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. 28 Vet. App. 158, 169-70 (2016). The July 2017 Board remand specifically directed the VA examiner to conduct this testing. The failure to do so requires a remand. In the case of Stegall v. West, 11 Vet. App. 268 (1998), the United States Court of Appeals for Veterans Claims held that a remand by the Board imposes upon the Secretary of the VA a concomitant duty to ensure compliance with the terms of the remand. It was further held that where the remand orders of the Board are not complied with, the Board errs in failing to insure compliance. The Court also noted that its holdings in that case are precedent to be followed in all cases presently in remand status. Id. Further, the examiner was asked whether pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time. In response, the examiner said he was unable to say without mere speculation as the Veteran "was not examined." See August 2017 Compensation and Pension Examination. However, the evidentiary record contains VA treatment records showing the Veteran's continuous back treatment over time and notes the Veteran's symptoms during flare ups. In Sharp v. Shulkin, the Court held that a VA examination is inadequate when the VA examiner does not elicit relevant information as to the Veteran's flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not "estimate the Veteran's functional loss due to flares based on all the evidence of record (including the Veteran's lay information) or explain why he or she could not do so." 2017 U.S. App. Vet. Claims LEXIS 1266, pp. *17-18. Lastly, it is unclear whether there is ankylosis of the spine. On examination, the examiner described additional factors contributing to disability as "less movement than normal due to ankylosis." However, when asked specifically whether there is ankylosis of the spine the examiner indicated "no." In light of these facts, additional VA examination of the Veteran's thoracolumbar spine must be scheduled in order to determine its current severity. On remand, the AOJ should obtain a new VA examination for evaluation of the Veteran's lumbar spine including assessments of any functional loss during flare-ups and upon repetitive motion. See id.; see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with an opportunity to identify any outstanding private or VA treatment records relevant to his claims. All obtained records should be associated with the evidentiary record to the extent possible. 2. Arrange for the Veteran to undergo VA examination, by an appropriate healthcare professional, for evaluation of his service-connected thoracolumbar spine disability. The Veteran's electronic claims file, to include a copy of this Remand, should be made available to and reviewed by the examiner. The examination report should reflect that such review was accomplished. a. Any indicated diagnostic tests and studies should be accomplished. All pertinent symptomatology and findings should be reported in detail, including range of motion (ROM) testing for the thoracolumbar spine. In reporting the results of range of motion testing, the examiner must identify any objective evidence of pain and the specific limitation(s) of motion, if any, accompanied by pain. To the extent possible, the examiner must assess the degree of severity of any pain. b. Tests of joint movement against varying resistance must be performed. The extent of any incoordination, weakened movement, and excess fatigability on use must also be described by the examiner. The examiner must assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. c. The examiner must also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). d. The examiner should also ensure that, consistent with 38 C.F.R. § 4.59, the VA examination report contains range of motion testing of the spine, including active, passive, weight-bearing, and non-weight-bearing, including the results following repetitive motion testing and whether there is any functional loss (please describe as stated above). If any of the range of motion testing described above cannot be performed or is not medically appropriate, it should be explained why. e. The examiner should also clarify whether or not there is ankylosis of the thoracolumbar spine and, if so, whether it is favorable or unfavorable ankylosis. f. The examiner is requested to provide a fully reasoned explanation for his or her opinions, based on his or her clinical experience, medical expertise, and established medical principles. 3. After the above development has been completed, readjudicate the claim. If the benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board The Veteran and his representative have 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). _________________________________________________ G. A. Wasik 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).