Citation Nr: 18115477 Decision Date: 07/02/18 Archive Date: 07/02/18 DOCKET NO. 14-29 795 DATE: July 2, 2018 REMANDED Entitlement to an increased rating in excess of 10 percent for lumbosacral strain and degenerative disc disease is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from April 1983 to August 1986. The Veteran testified before the undersigned Veterans Law Judge during a March 2018 hearing. This matter is on appeal from a March 2013 rating decision. The Board notes that the Veteran has perfected his appeals for his neck disability service connection claim and claims for an earlier effective date for his service-connected disabilities via a June 2009 VA Form 9. However, these appeals do not appear to be under any further development by the Agency of Original Jurisdiction (AOJ) as they have yet to be certified to the Board. The Board also notes that Veteran requested a Board hearing for these claims in the June 2009 Form 9. The claims are referred to the AOJ for appropriate action. 1. Entitlement to an increased rating in excess of 10 percent for lumbosacral strain and degenerative disc disease is remanded Although further delay is regrettable, the Board finds that the claim for entitlement to an increased evaluation of the Veteran’s service-connected lumbosacral strain and degenerative disc disease must be remanded for additional development. With respect to his increased rating claim, the Veteran last underwent a VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire Examination to assess the severity of his lumbosacral strain and degenerative disc disease in November 2012. See November 2012 VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ). However, at his March 2018 Board hearing, the Veteran asserted that his back disability has worsened. See March 2018 Board Hearing Transcript, p. 10; see also Snuffer v. Gober, 10 Vet. App. 400 (1997). Moreover, since the VA Back DBQ Examination was conducted, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the case of Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016), which affects the Veteran’s case. In Correia, the Court determined that additional requirements must be met prior to finding that a VA examination is adequate. See id. Thus, it is necessary to ensure that a new VA Back DBQ Examination be obtained on remand to assess the current severity and manifestations of the Veteran’s service-connected lumbosacral strain and degenerative disc disease that additionally complies with the requirements of the holding in Correia. The matter is REMANDED for the following action: 1. Schedule the Veteran for a new VA examination with a new examiner to ascertain the current severity and manifestations of his service-connected lumbosacral strain and degenerative disc disease. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is instructed to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for evaluating the Veteran’s service-connected lumbosacral strain and degenerative disc disease under the rating criteria. The examiner should also provide the range of motion in degrees of the back. In so doing, the examiner should test the Veteran’s range of motion 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 so in the report. It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use due to his disability. In this regard, the examiner must indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. The examiner shall inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups. ANY ADDITIONAL IMPAIRMENT ON USE OR IN CONNECTION WITH FLARE-UPS SHOULD BE DESCRIBED IN TERMS OF THE DEGREE OF ADDITIONAL RANGE OF MOTION LOSS. THE EXAMINER SHOULD SPECIFICALLY DESCRIBE THE SEVERITY, FREQUENCY, AND DURATION OF FLARE-UPS; NAME THE PRECIPITATING AND ALLEVIATING FACTORS; AND ESTIMATE, PER THE VETERAN, TO WHAT EXTENT, IF ANY, SUCH FLARE-UPS AFFECT FUNCTIONAL IMPAIRMENT. THIS TESTING SHOULD BE DONE REGARDLESS OF WHETHER THE VETERAN IS TESTED DURING A FLARE-UP OR NOT. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). 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. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” (38 C.F.R. § 4.1), copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. For all opinions, the RO should ensure that a rationale is provided, to include specific discussion of the medical principles involved and the relevant facts. 3. If the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010). (The Agency of Original Jurisdiction should ensure that any additional evidentiary development suggested by the examiner be undertaken so that a definite opinion can be obtained.) 4. Any opinion expressed must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). 5. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 6. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel