Citation Nr: 1808345 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-07 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for degenerative joint disease, lumbar spine, prior to August 14, 2012. 2. Entitlement to a rating in excess of 20 percent for degenerative joint disease, lumbar spine, since August 14, 2012. REPRESENTATION Appellant represented by: Ralph J. Bratch, Attorney ATTORNEY FOR THE BOARD D. Abdelbary, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1969 to September 1971. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The issues of entitlement to service connection for degenerative left hip condition and entitlement to a total disability rating for individual unemployability based on service-connected disability (TDIU) have been appealed and perfected, but not yet certified to the Board. A review of the claims file reveals that the agency of original jurisdiction (AOJ) is still taking action on these issues. Given such, the Board will not accept jurisdiction over these issues at this time, and will make a decision once the development has been completed. The Board also notes that the Veteran submitted a 90 day motion for extension. As the case is being remanded, he will have time to submitted additional evidence. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND The Veterans Claims Court has determined that examinations were not adequate unless the joint was tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing situations, in order for an examination to be considered adequate. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran underwent an independent orthopedic medical examination in September 2007 and a VA examination in August 2012. Although range of motion testing results were provided, active and passive range of motion testing was not conducted. Because the examinations do not contain these findings, an additional examination is necessary. Accordingly, the case is REMANDED for the following actions: 1. Obtain, if any, outstanding VA and non-VA medical treatment records from the period of August 2012 to the present, to include medical treatment records from March 2013 to December 26, 2013 from the Arizona Department of Corrections in Florence, Arizona. 2. Schedule the Veteran for an examination to clarify the severity of his lumbar spine degenerative joint disease. Access to the Veteran's electronic claims file should be made available to the examiner for review in connection with the examination. The examination report should include the range of motion of the lumbar spine in degrees. The examiner must, to the extent practicable, specifically measure both active and passive range of motion, in weight-bearing and nonweight-bearing. If any such testing cannot be performed on the joint at issue, the examiner should specifically state so and provide an explanation in the report. Additionally, the examiner should comment on the extent of any functional impairment resulting from painful motion, weakness, fatigability, and incoordination. If feasible, this determination should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. The examiner should also, to the extent possible, provide a retrospective opinion addressing prior range of motion of the lumbar spine, painful motion (and at what point it started), additional loss of motion after repetitions, and function loss due to pain -considering active and passive motion as well as weight-bearing and nonweight-bearing considerations-throughout the claims period. If, the examiner is unable to provide a retrospective opinion, the examiner must provide a thorough rationale explaining why such opinion is not provided in this examination. The examiner should also state whether the Veteran's service-connected lumbar spine degenerative joint disease results in incapacitating episodes manifested by physician-prescribed bed rest. If so, the examiner should report the dates and durations of these incapacitating episodes. The examination report should also identify all neurological manifestations of the service-connected lumbar spine degenerative joint disease, if any. The examiner must provide a clear rationale for all opinions provided. If any opinion cannot be provided without resort to speculation, the examiner must state this and explain why. 3. When the development requested has been completed, the case should be readjudicated by the AOJ. If any benefit sought is not granted in full, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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). _________________________________________________ L. HOWELL 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).