Citation Nr: 18138779 Decision Date: 09/27/18 Archive Date: 09/26/18 DOCKET NO. 09-35 673 DATE: September 27, 2018 REMANDED Entitlement to a disability rating in excess of 10 percent for chronic low back strain is remanded. REASONS FOR REMAND The Veteran served on active duty from November 2000 to November 2003, and from November 2004 to November 2005. This case comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran testified at a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ) in June 2018. The Board notes that the Veteran’s appeal originally included the additional issue of entitlement to an increased rating for bilateral hearing loss. However, the Veteran’s February 2016 VA Form 9 perfecting his appeal specifically limited the appeal to the back disability rating issue. Only the back disability rating issue is currently in appellate status before the Board. (Similarly, the Board notes that a November 2014 statement of the case addressed three other issues, but none of those issues were perfected for appellate review by the Board, and none of those issues are in appellate status before the Board at this time.) 1. Entitlement to a disability rating in excess of 10 percent for chronic low back strain is remanded. In his testimony during the June 2018 Board hearing, the Veteran described emergent symptoms, notably including concerns with bladder problems, that may reflect an increase in the severity of his service-connected back disability since his last VA examination for rating purposes. In addition, the Board notes that the most recent VA examination of the Veteran’s back for rating purposes did not provide the findings necessary to satisfy the requirements of the holdings of the United States Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016) and in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The Board notes that the Veteran discussed that he attempted to notify VA via voicemail of an inability to attend his scheduled 2015 VA examination. The Board finds that a remand to provide the Veteran an opportunity to report for a new VA examination to ascertain the current severity and manifestations of his back disability is warranted. Additionally, the Veteran described receiving pertinent medical treatment from private medical providers. During the processing of this remand, the RO shall have the opportunity to offer the Veteran assistance in obtaining any outstanding pertinent private medical records in connection with this appeal. The matter is REMANDED for the following action: 1. Associate with the claims-file any outstanding pertinent treatment records, including additional VA treatment records (such as those that may have been created since the last such update of the claims-file). In particular, ask the Veteran to complete a VA Form 21-4142 for any private providers of pertinent medical treatment of his back that the Veteran may wish VA to assist him in obtaining. Make two requests for the authorized records from any identified provider, unless it is clear after the first request that a second request would be futile. 2. After the record is determined to be complete, schedule the Veteran for an examination of the severity of his service-connected back disability. The examiner must test the Veteran’s active motion, passive motion, and with weight-bearing and without weight-bearing (including testing for pain). 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 also render, if possible to do so without resorting to mere speculation, a retrospective opinion that identifies active motion, passive motion, pain with weight-bearing and without weight-bearing (to the extent medically appropriate) at each time the back disability was previously examined with documented range of motion testing for VA rating purposes. The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The VA examiner should assess or estimate the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. A rationale should be provided for each medical opinion presented. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Barone, Counsel