Citation Nr: 1817757 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 14-42 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for cervical strain. 2. Entitlement to a rating in excess of 40 percent for low back disability. 3. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Ben Winburn, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1973 to August 1975. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In August 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. REMAND While additional delay is unfortunate, the Board finds further development is required before the Veteran's claims are decided. The Board finds that the issue of entitlement to an increased rating for a neck and low back disability must be remanded to provide the Veteran a new VA examination. Since the Veteran's last VA examination, the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017) addressed the adequacy of a VA examiner's opinion concerning additional functional loss during flare-ups of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then 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 c[an] not do so." Thus, in light of the Court's determination in Sharp, the Board finds that these matters must be remanded for a new VA examination and opinion addressing the issue of limitation of motion during flare-ups. The Board finds that remand is also required to ensure compliance with the holdings of Correia, specifying 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 v. McDonald, 28 Vet. App. 158 (2016). As the Veteran's previous examinations did not provide range of motion values for active and passive motion, a new examination must be provided. See Barr v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In light of the forgoing, the Board finds that the Veteran should be afforded a new VA neck and low back examination that complies with the holdings of Correia and Sharp. The claim for entitlement to a TDIU is inextricably intertwined with the claims for increased ratings for a neck and low back disability. Thus, adjudication of the TDIU claim is deferred. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). On remand, relevant ongoing medical records should also be obtained. Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his neck and low back disabilities. The claims file and a copy of this REMAND must be made available to, and reviewed by, the examiner. All indicated tests should be conducted, and all findings reported in detail. It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should also offer an estimate as to additional functional loss during flares regardless of whether the Veteran is undergoing a flare-up at the time of the examination. Further, in accord with the requirements of 38 C.F.R. § 4.59, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight- bearing and, if possible, with the range of the opposite undamaged joint; or an explanation from the examiner that any such testing cannot or should not be conducted. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his neck and/or low back symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. The examiner must provide a rationale for any proffered opinion. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Ask the Veteran to complete an updated VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. 4. Then, readjudicate the issues on appeal, to include the issue of TDIU. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ T. REYNOLDS 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).