Citation Nr: 19123784 Decision Date: 04/02/19 Archive Date: 03/29/19 DOCKET NO. 17-50 977 DATE: April 2, 2019 REMANDED Entitlement to a rating in excess of 20 percent for degenerative arthritis of the spine is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1982 to August 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See U.S.C. § 5103A; 38 C.F.R. § 3.159 (c). The Veteran asserts that his lumbar spine disability is more severe than as reflected by the currently assigned ratings. By way of background, the Veteran was initially granted service-connection with a 20 percent rating for his lower back condition in an August 2012 rating decision. The Veteran applied for an increase for his back condition in April 2013 and subsequently, the RO continued the 20 percent rating. In this rating decision, the RO determined that since there is a likelihood of improvement, the assigned evaluation is not considered permanent and is subject to a future review examination. The Veteran was examined for his lower back condition in August 2015 pursuant to the future examination and in September 2015, the RO found that the 20 percent rating was to be continued. There was no future exam scheduled as the RO found that the condition was static. The Veteran appealed this decision which is now before the Board. A VA treatment record from August 2016 shows that the Veteran had range of motion (ROM) for forward flexion to 30 degrees. At his August 2018 VA appointment, forward flexion was to 45 degrees. The Board also acknowledges the August 2016 VA treatment record that noted the lumbar spine was limited to 30 degrees. However, based on the most recent VA examination findings, the Board finds that a remand is necessary in order determine whether a staged rating is appropriate. The Veteran was examined for his service-connected back condition most recently in July 2018. The Board notes that the Court issued a decision which mandated new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the back, as in this case) in order to satisfy judicial review in increased rating claims. See Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. Id.; see also 38 C.F.R. § 4.59. A review of the record evidence shows that the Veteran's most recent VA examination for his back condition did not comply with Correia. For example, there is no indication in the July 2018 back examination whether the range of motion obtained at that examination is active or passive. Also, the VA examination from July 2018 does not contain an opinion concerning whether there would be additional functional impairment during flare-ups assessed in terms of the degree of additional range of motion loss. See Sharp v. Shulkin, 29 Vet. App 26 (2017). The VA examiner did indicate whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during repeated use over a period of time but did not address flare-ups in terms of Sharp requirements. The explanations by the VA examiner do not provide the requirements under Sharp and must be addressed in a new examination. In short, the VA back examination may be inadequate. Thus, at present, none of the medical evidence of record may fully satisfy the requirements of Correia, Sharp, and 38 C.F.R. § 4.59. Also, in light of the ROM findings per the VA treatment records, the Board finds a remand is necessary in order to get the full disability picture of the lower back condition. The matter is REMANDED for the following action: 1. Obtain VA treatment records from February 2019 to present. All reasonable attempts should be made to obtain any identified records. 2. After completing the foregoing actions, arrange for a VA examination to determine the current severity of the Veteran’s service-connected thoracolumbar spine disability. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. The Veteran should be interviewed, and all indicated tests and studies should be accomplished. All findings should be reported in detail. The examiner should perform range of motion testing which must be administered with a goniometer. The examiner must state whether there is any evidence of favorable or unfavorable ankylosis of the spine and determine the active range of motion of the Veteran’s thoracolumbar spine, in degrees, by use of a goniometer noting by comparison the normal range of motion of the lumbar spine. If pain on motion of the thoracolumbar spine is shown, the examiner must state at what degree the pain begins. The examination must include testing results of both active and passive motion, and in weight-bearing and non- weight-bearing. The examiner must also state whether there is weakened movement, excess fatigability, or incoordination attributable to the service-connected thoracolumbar spine disability, including intervertebral disc syndrome with degenerative disc disease, expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. Additionally, an opinion must be stated as to whether any pain found in the thoracolumbar spine could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. If the examination does not take place during a flare or after repetitive use, the examiner must glean and report information regarding the severity, frequency, duration and functional loss manifestations during such times from the Veteran, medical records, and other available sources to provide the requested estimations. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner must also state whether the Veteran has intervertebral disc syndrome; if so, the examiner must state whether the Veteran experiences incapacitating episodes requiring bed rest by a physician, and the frequency and total duration of such episodes over the course of the previous 12 months. All opinions of findings provided must include an explanation for the bases for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Kim, Associate Counsel