Citation Nr: A19002088 Decision Date: 10/18/19 Archive Date: 10/18/19 DOCKET NO. 190208-2992 DATE: October 18, 2019 REMANDED Entitlement to an increased disability evaluation for degenerative joint disease of the thoracolumbar spine and severe scoliosis, previously rated as lumbar sacral strain, currently rated as 20 percent disabling, is remanded. REASONS FOR REMAND The Veteran, who is the appellant, had active service from April 1988 to May 1991. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The Veteran chose to participate in VA's test program RAMP, the Rapid Appeals Modernization Program. This decision has been written consistent with the new AMA framework. The Veteran selected the Higher-Level Review lane when he submitted the RAMP election forms in August/October 2018. Accordingly, the January 2019 RAMP rating decision considered the evidence of record as of the date VA received the RAMP election form. The Veteran timely appealed this RAMP rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). The Board finds that a remand is required to correct a duty to assist error that occurred prior to the Veteran's election to enter the RAMP program. Although the Veteran was afforded a VA examination in March 2017, the Board notes that the United States Court of Appeals for Veterans' Claims (Court) has held that 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. Correia v. McDonald, 21 Vet. App. 158 (2016). Specifically, the Court concluded that the final sentence of 38 C.F.R. § 4.59 required testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Id. A review of the evidence of record reveals that the prior examinations fail to fully comply with the Court's holding in Correia. As such, remand is required to obtain an adequate examination regarding the Veteran's service-connected lumbar spine disorder. See Id. The matter is REMANDED for the following action: 1. The Veteran should be scheduled for an appropriate VA examination so as to determine the current level of severity of his low back disability. The entire record must be made available to and reviewed by the examiner in conjunction with the examination. The examiner should note in the examination report that the file has been reviewed. All necessary tests should be conducted. The examiner should describe the nature and severity of all manifestations of the Veteran's low back disability. Then, after reviewing the Veteran's complaints and medical history, the examiner should render an opinion, based upon his or her best medical judgment, as to the extent to which the Veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups, and should portray these factors in terms of degrees of additional loss in range of motion (beyond that which is demonstrated clinically), if feasible. In order to comply with the Court's precedential decision in Correia, the examiner must test and record 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 why that is so. The examiner should also state whether the Veteran's service-connected low back disability is manifested by any neurological impairment, and, if so, which nerves are involved, and the extent of the impairment (mild, moderate, moderately severe, or severe incomplete, or complete, paralysis of the affected nerve). The examiner should also state whether the Veteran has intervertebral disc syndrome (IVDS). If so, state whether IVDS results in incapacitating episodes, and if so, the duration of the episodes over the past 12 months. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kelly, Thomas S. The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.