Citation Nr: 1827587 Decision Date: 05/02/18 Archive Date: 05/14/18 DOCKET NO. 11-14 055 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for a lumbar spine disability currently rated as 10 percent disabling. 2. Entitlement to a total evaluation based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Unger, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1978 to September 2002. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2014 and April 2017, the Veteran's claims were remanded for additional development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2016). In addition, where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In pertinent part, the Board's August 2014 and April 2017 remands directed that the AOJ provide the Veteran a VA examination which adequately assessed the symptoms associated with his service-connected lumbar spine disability, to include full range of motion findings pertinent to the joints involved. Although the Veteran was provided VA spine examinations in May 2016 and 2017, the Board finds these examinations to be inadequate. Specifically, they are not fully compliant with the Court of Appeals for Veterans' Claims' (Court) holding in Correia v. McDonald, 28 Vet. App. 158 (2016). The Board notes 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. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that the VA examinations are adequate. In sum, the VA examination reports of record include only active range of motion findings and do not include range of motion findings for passive range of motion. Furthermore, the reports fail to include nonweight-bearing results. As the previous examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, the prior remand directives have not been substantially completed, and a new examination is necessary to decide the appeal. See Stegall, 11 Vet. App. at 268; see also D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). The Board notes that the RO sought an addendum to the May 2017 examination and specifically requested that the examiner provide the ranges of motion during passive and non-weight bearing motion. The examiner responded that the request could not be performed on a back. However, the examiner did not provide an explanation for such a finding. Therefore, on remand such testing should be completed or a thorough explanation for why such testing cannot be completed should be provided. The Board observes that the development and readjudication of the Veteran's appeal for increased rating may affect his combined evaluation during the appeal period under consideration for the TDIU appeal. As such, the increased rating issue is inextricably intertwined, and adjudication of the Veteran's TDIU appeal must be deferred at this time. Harris v. Derwinski, 1 Vet. App. 180 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Due to the amount of time which will pass on remand, updated treatment records should be provided. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the current nature and severity of the Veteran's service-connected lumbar spine disability. The examination should be scheduled with an examiner other than the one that completed the May 2017 examination, if possible. Range of motion testing should be accomplished and reported for the thoracolumbar spine in 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, he or she should clearly explain why that is so. The Veteran has the right to submit additional evidence and argument on the 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). _________________________________________________ R. FEINBERG 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).