Citation Nr: 19119686 Decision Date: 03/19/19 Archive Date: 03/18/19 DOCKET NO. 14-12 588 DATE: March 19, 2019 REMANDED Entitlement to a compensable rating for transverse process fracture at L1-L4 of the lumbar spine and low back strain (lower back disability) prior to October 2, 2017 and a rating higher than 10 percent thereafter is remanded. REASONS FOR REMAND The Veteran had active military service from September 2008 to February 2012. This matter was originally before the Board of Veterans’ Appeals (Board) following an appeal from a March 2012 rating decision of the Department of Veterans Affairs Regional Office (RO). In November 2016, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In a March 2018 Board decision, this matter was remanded for additional development. As discussed below, the requested development was not substantially complied with and the claim is not ready for appellate review. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating for Lower Back Disability The Board regrets any further delay in this case, but finds that a remand is required. An additional VA examination is necessary in light of the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016). The Court held that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if appropriate, with range of motion measurements of an opposite undamaged joint. The Veteran’s lower back disability was examined by VA in October 2011, February 2016 and September 2017; unfortunately, the examination reports do not meet the specifications of Correia. The examination reports contain range of motion testing for what is presumably active motion, but not in passive motion and nonweight-bearing. An additional examination is therefore necessary under 38 C.F.R. § 3.159(c)(4) to ensure compliance with the decision in Correia. Additionally, the March 2018 Board remand requested that the RO contact the Veteran and request that he identify his private treatment providers for his service-connected lower back disability. The remand order specifically requested that the RO make two attempts to obtain this information, however, it appears only one attempt was made. Therefore, on remand the Veteran should be contacted again and asked to identify any and all private treatment providers of his service-connected lower back disability. The matter is REMANDED for the following action: 1. Contact the Veteran and request authorization to obtain any outstanding private medical records pertinent to his service-connected lower back disability claim. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.§ 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After completing the above, schedule the Veteran for a VA examination to determine the current severity of his lower back disability. His claims file, including a copy of this remand, must be made available to the examiner for review in connection with the examination. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner must record all pertinent medical complaints, symptoms, and clinical findings in detail. The examiner should provide the range of motion of the Veteran’s lower back disability and comment on the degree of functional loss due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. The examiner should report (in degrees) the point at which pain is objectively recorded. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the right knee is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. This information must be derived from testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The examination report must confirm that all such testing has been made and reflect the results of the testing. 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 must provide a complete rationale for any opinion given. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel