Citation Nr: 1825528 Decision Date: 04/26/18 Archive Date: 05/07/18 DOCKET NO. 14-28 289A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to a disability rating greater than 20 percent prior to June 11, 2014 and greater than 40 percent beginning June 11, 2014 for thoracolumbar spine spondylosis with degenerative disc disease and intervertebral disc syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active service from January 2007 to January 2011. This matter comes before the Board of Veterans Appeals (Board) from a September 2013 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Salt Lake City, Utah. The Board notes that, in his August 2014 substantive appeal, the Veteran requested a Board hearing before a Veterans Law Judge. However, in a subsequent February 2015 statement, the Veteran withdrew such hearing request. 38 C.F.R. § 20.704(e) (2017). The Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. While the Veteran was unemployed for a period of time during the pendency of this appeal beginning November 2012, claimed to have been due to his service-connected lumbar spine disability, a December 2014 VA psychiatric examination report shows that the Veteran began working three months earlier. Therefore, the Board finds that Rice is inapplicable as it appears that the Veteran is currently working. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Initially, the Board notes that the Veteran has been afforded two different VA examinations during the course of this appeal, first in June 2013 and again in June 2014. Significantly, the June 2013 VA examination is negative for intervertebral disc syndrome but the June 2014 VA examination is positive for intervertebral disc syndrome which, according to the examiner, had not resulted in any incapacitating episodes requiring physician prescribed bedrest in the past 12 months. In his September 2013 notice of disagreement, the Veteran wrote that he had experienced at least 6 weeks of incapacitating episodes over the past 12 months. Also, in his August 2014 substantive appeal, the Veteran reported that he had visited the emergency room due to incapacitating episodes of back pain on several occasions following his January 2013 back surgery. VA treatment records confirm emergency room treatment for back pain in October 2013 and October 2014. On remand, the Veteran should be afforded a new VA examination to determine when he first exhibited intervertebral disc syndrome and whether the Veteran has experienced any incapacitating episodes due to his intervertebral disc syndrome during the pendency of the appeal beginning in November 2012. Also, the Board observes that a new precedential opinion that directly affects this case was issued by the United States Court of Appeals for Veterans Claims (Court). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[t]he 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." The Court found 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. Unfortunately, neither the June 2013 nor June 2014 VA examinations. comply with Correia. Accordingly, the Veteran must be afforded new VA examinations to correct the deficiencies with regard to Correia. Furthermore, while the June 2014 VA examination showed radiculopathy of the left lower extremity due to the Veteran's lumbar spine disability and the Veteran has been awarded service connection for radiculopathy of the left lower extremity, an October 2014 VA treatment record notes complaints of bilateral radiculopathy. Pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243, Note (1), the Board must consider whether a separate evaluation is warranted for associated objective neurological abnormalities when evaluating a spine disability. Given the indication that the Veteran may now be experiencing a neurological disability of the right lower extremity due to his service-connected low back disability, such should be considered on re-examination of the Veteran's spine. Lastly, the Board notes that there are likely outstanding VA treatment records as the most recent VA medical records in the claims file are dated in December 2014. Therefore, all outstanding VA treatment records should be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding VA treatment records dated from December 2014 to the present. 2. Arrange for the Veteran to undergo VA examination for evaluation of his lumbar spine disability. The examiner should test the range of motion (using a goniometer) in active motion, passive motion, weight-bearing, and non weight-bearing, for the lumbar spine in accordance with Correia v. McDonald, 28 Vet. App. 158 (2016). 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 should consider the Veteran's September 2013 allegation concerning incapacitating episodes totaling more than 6 weeks in the past 12 months as well as VA treatment records showing emergency room treatment record for low back pain in October 2013 and October 2014 and determine when the Veteran first exhibited intervertebral disc syndrome and whether the Veteran has experienced any incapacitating episodes due to his intervertebral disc syndrome during the pendency of the appeal beginning in November 2012. The examiner should also note the October 2014 VA treatment record showing complaints of bilateral lower extremity radiculopathy and consider whether the Veteran experiences a neurological disability of the right lower extremity due to his service-connected lumbar spine disability. A rationale should be given for all opinions and conclusions expressed. 3. After conducting any additional development deemed necessary the Veteran's claim should be readjudicated. The appellant has the right to submit additional evidence and argument on the matter 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). _________________________________________________ L.M. BARNARD 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).