Citation Nr: 1825822 Decision Date: 04/30/18 Archive Date: 05/07/18 DOCKET NO. 14-39 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial rating in excess of 10 percent for a back disability. ATTORNEY FOR THE BOARD K. Forde, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from May 1988 to June 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Review of the record reveals that the Veteran underwent a VA back examination in May 2008; however, this examination used a range of motion standard different from VA. Further, the examination does not comply with Correia v. McDonald, 28 Vet. App. 158 (2016) or Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (the examiner should "estimate the functional loss that would occur during flares."). A review of the record reveals that the Veteran has not been scheduled for a VA examination in connection with his claim since he failed to report for his 2008 VA examination. See October 2008, January 2009, March 2009, and April 2009 VA notification letters. In light of the inadequate May 2008 examination and the recent holdings in Correia and Sharp, the Veteran should be afforded another opportunity to report for a VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this regard, the Veteran should be advised that if he fails to report for this needed examination, VA will rate his disability based on the evidence of record. See 38 C.F.R. § 3.655(b) (2017). Any outstanding treatment records should also be secured. Accordingly, the case is REMANDED for the following actions: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records, to include from Dr. M.H Ornstein, Dr. B. Hazleman, and Dr. R. Munglani, If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. Then schedule the Veteran for a VA examination to determine the current nature and severity of his back disability. The claims file, to include a copy of this remand must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. The examiner is asked to address the following: (a) Full range of motion testing must be performed where possible. The joints involved should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. Please specify range of motion measurements in all areas outlined above. 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. (b) Considering the Veteran's reported history, please also provide an opinion describing functional impairment of the Veteran's back due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A complete rationale shall be given for all opinions and conclusions expressed. 4. Then, after taking any additional development deemed necessary, readjudicate the appeal. The Veteran 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 (2012). _________________________________________________ S. BUSH 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).