Citation Nr: 20003376 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 16-57 676 DATE: January 14, 2020 REMANDED Entitlement to an initial rating in excess of 10 percent for a degenerative disc disease for the back, status post lumbar laminectomy and fusion, is remanded. REASONS FOR REMAND The Veteran had active service from October 1964 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified at a September 2019 videoconference hearing before the undersigned. A copy of the transcript has been associated with the claims file. 1. Entitlement to an increased initial rating for a degenerative disc disease for the back, status post lumbar laminectomy and fusion, is remanded. The Veteran contends that his service-connected degenerative disc disease is such that a higher rating is warranted. Since the last August 2010 VA examination of the spine, the Veteran's statements and testimony indicate that he has undergone back surgery and subsequent worsening of his back disability. Therefore, it is necessary to adequately determine the current severity of the Veteran's degenerative disc disease and the functional effects of such disability. Snuffer v. Gober, 10 Vet. App. 400 (1997); VAOPCGPREC 11-95 (April 7, 1995); see also 38 C.F.R. § 3.327. In addition, the new VA examination should be in compliance with recent precedent of the United States Court of Appeals for Veterans Claims (Court). The Court has held that "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 38 C.F.R. § 4.59." See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 states that "[t]he joints involved should be tested 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.; See also Sharp v. Shulkin, 29 Vet. App. 26, 22 (2017), providing that the examiner should "estimate the functional loss that would occur during flares." The Board finds that the Veteran should be provided a new VA examination that assesses the current severity of his condition and satisfies the requirements of Correia, Sharp, and 38 C.F.R. § 4.59 (2019) before a decision may be properly rendered. The matter is REMANDED for the following action: 1. Obtain and associate with the claims file all pertinent VA and private medical records the Veteran adequately identifies, including medical records regarding the Veteran’s back surgery. 2. Upon receipt of all additional records, schedule the Veteran for VA examination of the degenerative disc disease for the back. The claims folder and a copy of this remand are to be made available to and reviewed by the examiner in connection with the examination. The evaluations of the degenerative disc disease should consist of all necessary testing including range of motion testing based on (1) active motion; (2) passive motion; (3) weight-bearing; and (4) non-weight 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 this is so. The examiner should address the following: a. The degree of severity and the functional effects of this disability on the Veteran's activities of daily living and capacity for work. b. The extent of any weakened movement, excess fatigability and incoordination. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. c. Whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the examination is not conducted during a flare-up, the functional impact of a flare-up should be estimated based on the Veteran's reports. d. The examiner should determine whether the Veteran has neurological impairment due to his degenerative disc disease and state whether any such impairment is mild, moderate, moderately severe, or severe. It is essential the examiner provide explanatory rationale for opinions on these determinative issues, citing to specific evidence in the file supporting conclusions. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.