Citation Nr: 1815751 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-28 549A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial rating in excess of 10 percent for service-connected lumbar disc disease prior to September 12, 2013, and to a rating in excess of 20 percent thereafter. REPRESENTATION Veteran represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Coyne, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Air Force from July 1960 to April 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Michigan. The Veteran testified before the undersigned Veterans Law Judge in January 2018. A transcript of that hearing has been associated with the claims file. In June 2014, the Los Angeles, California RO partially granted the Veteran's increased rating claim, assigning a 20 percent rating effective September 12, 2013. Thus, the Board has recharacterized the issue on appeal to reflect this partial grant. 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 REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Unfortunately, due to reasons that follow, a remand is required. Although the Board regrets this delay, it is necessary to ensure the Veteran is afforded adequate claim development assistance. At the Veteran's January 2018 Board hearing he explained that over the course of the appeal period, and specifically since the award of 20 percent rating effective September 12, 2013, his lumbar spine condition has continually worsened. The Veteran's most recent VA examination report was completed in May 2014. The Veteran also reported worsening balance issues, and recent hip and knee pain radiating from his back to his hip. According to McLendon v. Nicholson, when required to adequately adjudicate the claim, VA must provide a medical examination assessing the Veteran's claimed disabilities or conditions. See generally 20 Vet. App. 79 (2006). This examination must be sufficiently contemporaneous so as to assess the current nature, extent, and severity of the Veteran's service-connected disability. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). When the evidence indicates that there has been a material change in the disability and the evidence of record is too old, or that the current rating may be incorrect, VA has a duty to conduct a new examination. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993). As such, because the Veteran's may have worsened, another examination must be conducted to ascertain the current severity of his lumbar spine disability. Additionally, recently, the United States Court of Appeals for Veterans Claims (Court) has held that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59." Correia v. McDonald, 28 Vet. App. 158 (2016). 38 C.F.R. § 4.59, which addresses musculoskeletal claims where pain on motion is involved, indicates that "the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint." However, the Court went on to indicate that range of motion testing of the opposite joint does not apply "for joints that do not have an opposite or whose opposite is also damaged." Id. The Court's findings in Correia v. McDonald were predicated on the observation that in that case, it "seemed obvious that VA has determined that range of motion testing is necessary in cases of joint disabilities." Id.; see also Sharp v. Shulkin, 29 Vet. App. 26, 22 (2017) (providing that the examiner should "estimate the functional loss that would occur during flares.") Accordingly, as the Veteran's most recent VA examination pre-dated the ruling in Correia, the examination report procured should be compliant with that holding. Additionally, as the Veteran has received some VA treatment for his lumbar spine condition, on remand all outstanding VA treatment records should be procured. Finally, a review of the record reveals that the Veteran indicated that he receives ongoing private treatment for his back condition, specifically from Dr. T. J. Although the Veteran submitted a release authorization for collection of outstanding treatment records from Dr. T. J. in November 2011, a review of the claims file does not reveal those records. Although the RO made one attempt to procure these records, a second attempt was not made. Accordingly, on remand the AOJ should make an additional attempt to procure private records from Dr. T. J. and, if required, provide the Veteran with an opportunity to submit an updated release authorization. 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. Obtain the Veteran's outstanding VA treatment records relevant to the claim being remanded and associate those records with the claims file. Efforts to obtain these records should be documented in the claims file. If these records cannot be located the Veteran must be notified. 2. Attempt to procure the Veteran's outstanding private treatment records from Dr. T. J. to include, if necessary, providing the Veteran an opportunity to submit an updated release authorization for Dr. T. J. If he returns the requested information, attempt to obtain the records. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for an examination with an appropriate clinician to determine the current severity of his lumbar spine disability. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the reliability of the history provided by the Veteran, the examiner must so state, with a complete explanation in support of such a finding. b. Taking into account the evidence in the claims file and the Veteran's lay statements, the examiner must determine the current severity of the Veteran's lumbar spine disability, and its impact on his daily activities and capacity for work. The examiner should test the range of motion for the Veteran's lumbar spine during active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why that is so (i.e. safety, practicality etc.). Additionally, if there is evidence of flare-ups the examiner should ascertain adequate information to include lay evidence sufficient to provide an estimate for flare-ups, or provide an explanation for why such an estimate cannot be provided. The examiner should identify all related neurological impairment. c. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must so state and provide a rationale for this conclusion, including an explanation of whether there is any potentially available information that, if obtained, would allow for a non-speculative opinion. 4. The AOJ must review the claims file and ensure that the foregoing development actions have been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. 5. After undertaking any necessary additional development, readjudicate the issue on appeal. If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative must be provided with a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. 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 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. L. Kennedy 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).