Citation Nr: 20006522 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 17-10 993A DATE: January 27, 2020 REMANDED Entitlement to a disability rating in excess of 20 percent for a low back disability is remanded. Entitlement to a disability rating in excess of 20 percent for right lower extremity radiculopathy is remanded. Entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1968 to June 1970 with additional service in the Puerto Rico National Guard, including a period of active duty for training (ACDUTRA) from July 8, 1975 to July 20, 1975. This matter is before the Board from an appeal of a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, in a February 2017 Statement of the Case, the RO increased the evaluation for the Veteran’s service-connected right lower extremity radiculopathy from 10 percent to 20 percent effective from August 30, 2016. A veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation and a claim remains in controversy where less than the maximum available benefit is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). As such, the issue remains on appeal as noted on the title page. This matter was remanded by the Board in October 2018 for further development. As discussed below, another remand is necessary before this matter can be adjudicated. 1. Entitlement to a disability rating in excess of 20 percent for a low back disability is remanded. 2. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is remanded. 3. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is remanded. In the May 2018 remand, the Board directed the RO to schedule a new VA examination for the Veteran. The Veteran attended a VA examination in May 2019. Unfortunately, the VA examination is not adequate as it does not comply with the requirements announced by the Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016). he Correia, the Court held that 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 nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Unfortunately, the May 2019 VA examination does not demonstrate range of motion testing for the Veteran’s joints on both active and passive motion and in weight-bearing and nonweight-bearing. Therefore, the VA examination is inadequate for evaluation purposes. Thus, at present, the current medical evidence of record does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, and a new VA examination is necessary. Additionally, the Board notes that relevant VA generated treatment records were associated with the claims file in February and May 2018, as well as March and October 2019. The March 2019 records contained some documents which required translation. The translated medical records were associated with the claims file in October 2019. The RO did not issue a Supplemental Statement of the Case (SSOC), and neither the Veteran nor his representative submitted a waiver of AOJ consideration for this evidence. Therefore, the Board may not consider the evidence in the first instance, and the RO must issue a SSOC, and the Veteran and his representatives must be given an opportunity to respond to the SSOC. 38 C.F.R. § 19.31 (c) (2019). As the Veteran’s related claims of entitlement to increased ratings for left and right lower extremity radiculopathy should be evaluated during the VA examination for his low back disability, remand of those issues is appropriate as well. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from October 2019 to the Present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected low back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Also, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. When the development requested has been completed, the case should again be reviewed on the basis of the additional evidence and re-adjudicated. If the benefits sought are not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Boal, 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.