Citation Nr: 1829068 Decision Date: 05/21/18 Archive Date: 06/05/18 DOCKET NO. 13-16 954 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to a disability rating in excess of 10 percent for lumbar strain, degenerative changes and degenerative disc disease (low back disability) prior to May 21, 2014, and a disability rating in excess of 20 percent on and after May 21, 2014. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.L. Reid, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from April 1985 to August 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction has since been transferred to the Boise, Idaho RO. The RO granted service connection for lumbar strain with radiating pain and assigned an initial 10 percent rating, effective August 10, 2003. Subsequently, the November 2014 rating decision increased the Veteran's low back condition to 20 percent disabling, effective May 21, 2014. The Veteran presented testimony before the undersigned Veterans Law Judge (VLJ) at a May 2015 hearing. A transcript of that hearing is included in the claims file. The case was previously before the Board in August 2015 when it was remanded for additional development. That development has been completed, and thus the case may now be reviewed on the merits. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND 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 so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). The Veteran asserts that his low back disability warrants a higher disability rating than is currently assigned. When evaluation of a musculoskeletal disability is based on limitation of motion, VA regulations provide, and the Court of Appeals for Veterans Claims (Court) has emphasized, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). In addition, testing of range of motion of joints that have painful motion should include active and passive motion, motion in weight-bearing and non-weight-bearing, and, if possible, the range of motion of the opposite undamaged joint. 38 C.F.R. § 4.59; see Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. While the Veteran's May 2014 VA examination is contemporaneous to the claim, and the examination report addressed most of the factors discussed in DeLuca, it did not address all of the factors discussed in Correia. In light of the above, the Board must remand the low back disability rating issue for a new examination to address those factors. Moreover, at the Veteran's May 2015 Board hearing he testified to experiencing flare-ups or exacerbations of his condition at least once or twice per month, where he is unable to continue working as his condition requires him to retreat to his home for the rest of the day. Specifically, the Veteran stated that when his flare-ups are at their worst, he is unable to drive as the pain is unbearable. The May 2014 examination does not account for these flare-ups. As the Court explained in Sharp v. Shulkin, 29 Vet. App. 26 (2017), "the VA Clinician's Guide makes explicit what DeLuca clearly implied: it instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans themselves." Id. at 6. Even when the claimant is not experiencing a flare-up at the time of the examination, a VA examiner must elicit relevant information as to the Veteran's flares or ask him [or her] to describe the additional functional loss, if any, he [or she] 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 could not do so. As such, the Veteran should be afforded a VA examination in compliance with the above. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file all VA treatment records for the Veteran dated from December 2015 to the present. 2. Afford the Veteran an additional VA orthopedic examination to determine the current severity of his low back disability. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. Also, in order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Non-weight-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 VA examiner should provide a complete rationale for any opinions provided. A complete rationale must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. Upon completion of the above, and any additional development deemed appropriate, the AOJ should readjudicate the remanded issue(s). If any benefit sought on appeal remains denied, the Veteran and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response, the appeal must be returned to the Board for appellate review. 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).