Citation Nr: 19158697 Decision Date: 07/30/19 Archive Date: 07/29/19 DOCKET NO. 14-22 021 DATE: July 30, 2019 REMANDED An initial rating higher than 10 percent prior to May 10, 2012 and higher than 20 percent thereafter, for a lower back disability is remanded. An initial rating in excess of 10 percent for a service-connected right leg disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1975 to September 1977. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a January and July 2012 rating decisions by the Roanoke, Virginia Department of Veteran’s Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board for additional development in March 2018. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran’s claim so that every possible consideration is afforded. 1. An initial rating higher than 10 percent prior to May 10, 2012 and higher than 20 percent thereafter, for a lower back disability is remanded. The three VA examinations during this appeal period (April 2011, May 2012, and April 2014) are outdated and do not meet the legal criteria to be used as evidence for rating purposes. All three examinations do not comply with the U.S. Court of Appeals for Veterans Claims’ decision in Correia v. McDonald. 28 Vet. App. 158 (2016). Essentially, this decision clarified the requirements that must be met with respect to orthopedic disability examinations prior to the Board finding that an examination report includes adequate evidence to adjudicate the claim. Id. Additionally, the most recent examination in April 2014 noted that the Veteran did not experience flare ups. This is not consistent with the two prior VA examinations and lay evidence in the record. E.g., November 27, 2018 Physical Therapy Note (the Veteran reported a flare up that caused him to be bedridden for several days). An explanation is needed for this significant recharacterization of the Veteran’s condition that deviates from the medical history in the record. Otherwise, an examiner is required to be “sufficiently informed of and [convey] any additional or increased symptoms and limitations experienced during flare[-up]s...” Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). For these reasons, a new examination is needed before the Board can decide the Veteran’s claim. 2. An initial rating in excess of 10 percent for a service-connected right leg disability is remanded. A review of the record shows the most recent examination assessing the Veteran’s right leg disability was conducted in April 2014, over five years ago. Because several years have passed since this examination and a current disability picture is crucial to determining an accurate rating in this matter, a contemporaneous examination is needed. Additionally, the prior VA examinations evaluating his right leg condition are also not in compliance with the above-mentioned recent guidance for evaluating orthopedic disabilities. Therefore, a remand is also necessary for additional development and to afford the Veteran a VA examination pursuant to the specific directives below. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records (and adequately identified private treatment records) for association with the claims file. 2. Then schedule the Veteran for a VA examination to evaluate the severity of the Veteran’s service-connected lower back and right leg disabilities. The examiner should answer the following questions based on a review of the claims file and interview and examination of the Veteran. All necessary diagnostic testing should be performed. (a.) The examiner must describe all impairments of the Veteran’s lower back and right leg disabilities; make determinations regarding range of motion, including any additional functional impairment; and identify any related neurological symptoms. (b.) The examiner must test active and passive range of motion and provide weight-bearing and non-weight-bearing information. If pain is noted, the point in the range of motion at which pain starts MUST be clearly noted. (c.) The examiner must assess the additional functional impairment on repeated use or during flare-ups IN TERMS OF THE DEGREE OF ADDITIONAL RANGE OF MOTION LOSS, using lay observations specifically elicited from the Veteran. (d.) If this is not feasible, the examiner MUST provide a detailed explanation and rationale for why this could not be accomplished. Specifically, if the physician cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; Under federal law, the Board CANNOT accept a rationale that the Veteran is not having a flare-up at the time of the examination to explain why range of motion values cannot be provided. If the Veteran is not having a flare-up during the examination, please work with the Veteran to estimate his functional loss (to include range of motion limitations) during flare-ups by describing and demonstrating typical flare-up symptoms (and measuring these demonstrations with a goniometer). (e.) In summary, the following five items MUST be described in degrees (1) active range of motion (2) passive range of motion (3) where the pain starts during active range of motion (4) where the pain starts during passive range of motion, and (5) range of motion during flare-ups (which MUST be estimated if the examination is not conducted during a flare-up) [CONTINUED ON NEXT PAGE] A detailed rationale and reasoning for all opinions and conclusions provided is required BY LAW. Providing an opinion without a thorough explanation will delay processing of the claim and may result in a clarification being requested. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David Arritt, Associate Counsel 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.