Citation Nr: 20002009 Decision Date: 01/09/20 Archive Date: 01/09/20 DOCKET NO. 12-07 047 DATE: January 9, 2020 REMANDED Entitlement to a disability rating in excess of 10 percent for degenerative joint disease of the lumbar spine (lumbar spine disability) is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1983 to August 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. This matter has been remanded previously in October 2014, July 2016, and September 2017. As part of these remands, the Agency of Original Jurisdiction (AOJ) was directed to further develop the claim at issue in this appeal. First, in October 2014, the matter was remanded to obtain a current VA examination. Then, the Board remanded this claim again in July 2016 for further development, to include obtaining outstanding VA treatment records. Most recently, in September 2017, the Board remanded the claim for additional development, to include resolving conflicting medical reports regarding the presence or lack thereof of lumbar spine ankylosis. Unfortunately, for the reasons discussed below, another remand is required for an adequate and updated VA spine examination. First, the final sentence of 38 C.F.R. § 4.59 provides that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint." To be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). Here, the most recent, July 2015 VA examination (which predated Correia) shows lumbar spine range of motion findings but did not specify whether the findings were on either active or passive motion, or in weight-bearing or non-weight bearing. Accordingly, a Correia-compliant VA spine examination is required. Second, under Sharp v. Shulkin, 29 Vet. App. 26 (2017), VA examiners must estimate additional functional loss due to flare-ups of musculoskeletal disabilities based on information procured from relevant sources, including lay statements of the Veteran, even if he or she is not experiencing a flare-up at the time of the examination. Here, the most recent, July 2015 VA examination (which predated Sharp) did not provide a response regarding flare-ups of the Veteran’s lumbar spine disability. Thus, the Veteran must be afforded a Sharp-compliant VA spine examination. Moreover, a current VA examination is required. As mentioned above, the most recent VA examination was in July 2015, more than four years ago, and the evidence of record suggests possible worsening of the Veteran’s lumbar spine disability since then. See e.g., September 2018 VA primary care note (indicating that the Veteran began experiencing new symptoms in connection with his lumbar spine disability, including radiating pain and numbness in his left leg). Thus, another VA examination is necessary to assess the current nature and severity of his service-connected lumbar spine symptoms. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Finally, the Veteran must be invited to submit completed authorizations for release of information for any private treatment records relevant to the issue on appeal. The record reflects a December 2019 authorization (VA Form 21-4142a) that is signed by the Veteran but does not identify any specific providers that may have information regarding his lumbar spine disability. However, the record shows that the Veteran received private treatment for his lumbar spine disability from various providers, including Dr. D.R., Dr. A.F., and Dr. J.A. See e.g., March 2013 lumbar spine impairment questionnaire, March 2017 lumbar spine impairment questionnaire, February 2015 lumbar spine impairment questionnaire. An attempt must be made to solicit an additional authorization from the Veteran that sufficiently identifies these and any other private providers with outstanding, relevant records related to the current issue on appeal. The matters are REMANDED for the following action: 1. Contact the Veteran to obtain a completed authorization for release of information (VA Form 21-4142a) and attempt to obtain treatment records from Dr. D.R., Dr. A.F., Dr. J.A, and any other providers that the Veteran has received treatment from for his lumbar spine disability. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain such records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his agent. 2. Then, schedule the Veteran for a VA examination to determine the current nature and severity of the Veteran’s service-connected lumbar spine disability, to include whether there is any associated neurological abnormalities. The claims file must be made available to and be reviewed by the VA examiner. Any indicated evaluations, studies, and tests should be conducted, to include any necessary neurological testing. The VA examiner should test the range of motion (using a goniometer) in active motion, passive motion, weight-bearing, and non-weight bearing, of the lumbar spine. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, (e.g., feasibility of testing the spine in weight-bearing) he or she should clearly explain why that is so. The VA examiner should ask the Veteran for a description of his flare-ups and note the Veteran’s complaints of flare-ups of the lumbar spine during the December 2010 VA examination. See VBMS, document labeled VA Examination, receipt date 12/18/2010, pages 1-2 of 4. The VA examiner should express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The VA examiner should opine as to any resultant loss in range of motion that would occur during flare-ups or explain why it is not feasible to render such an opinion. The VA examiner must address the conflicting medical evidence regarding the presence of lumbar spine ankylosis. See VBMS, document labeled Medical Treatment Record – Non-Government Facility, receipt date 10/10/2017, pages 2-6 of 13 (indicating that the Veteran does not suffer from unfavorable ankylosis). But see VMBS, document labeled Medical Treatment Record – Non-Government Facility, receipt date 10/10/2017, pages 7-12 of 13 (indicating that the Veteran does suffer from unfavorable ankylosis, localized at lumbosacral region). Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maietta, 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.