Citation Nr: 21000885 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 15-22 594 DATE: January 6, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for degenerative arthritis of the lumbar spine is remanded. Entitlement to service connection for a neck disability (also claimed as cervical spine) is remanded. REASONS FOR REMAND The Veteran served active duty in the United States Air Force from October 2001 to September 2003. This appeal comes to the Board of Veterans’ Appeals (Board) from rating decisions, dated March 2016 and June 2017, issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newnan, Georgia (hereinafter Agency of Original Jurisdiction (AOJ)). In October 2018, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. A transcript of this hearing has been associated with the claims file. In a June 2019 decision, the Board denied the Veteran’s appeal for entitlement to service connection for a neck condition and for an entitlement to an increased disability rating in excess of 20 percent for his lumbar spine disability. In denying the claims, the Board relied on a February 2016 VA sleep conditions examination and the December 2014, February 2016, and May 2017 VA spine examinations. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). Subsequently, pursuant to a July 2020 joint motion for remand (JMR), the Court vacated the Board's decision regarding entitlement to service connection for a neck disability and the increased rating claim for lumbar spine disability. With respect to the neck disability clam, the Court stated that the Board erred when it failed to address the theory of secondary service connection after it had been raised in the record. With respect to the increased rating claim for lumbar spine disability, the Court stated that the Board applied an inapplicable standard when considering the Veteran’s functional loss under the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59 and the holdings in Deluca v. Brown, 8 Vet. App. 202 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Court additionally stated that the Board should discuss whether the May 2017 VA examination report is adequate in light of 38 C.F.R. § 4.59 and the Court’s holding in Correia v. McDonald, 28 Vet. App. 158 (2016). Accordingly, the appeal has been vacated and remanded to the Board for action consistent with the Court’s decision. 1. Entitlement to a disability rating in excess of 20 percent for disc herniation and intervertebral disc syndrome is remanded. The Veteran asserts that he is entitled to a higher disability rating for his lumbar spine disability. His disability has been evaluated at 20 percent disabling, under Diagnostic Codes 5243-5237. The Board finds that additional development is required prior to the Board's further consideration of the claims on appeal. The United States Court of Appeals for Veterans Claims (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 (2016) 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." The prior May 2017 VA examination did not comply with Correia. As such, a remand is required so that the Veteran may be afforded a new VA examination that contain adequate information pursuant to Correia. 2. Entitlement to service connection for a neck disability (also claimed as cervical spine) is remanded. The Veteran contends that his neck disability is related to service, or in the alternative, secondary to his service-connected lumbar spine disability. See October 2018 Hearing Transcript. The Board notes that the Veteran is service connected for lumbar spine disability, evaluated as 20 percent disabling. As noted above, in July 2020, the Court issued a JMR vacating and remanding the issue of service connection for a neck disability, to include as secondary to service-connected lumbar spine disability, to the Board for additional action. The Board notes that the February 2016 VA examination is inadequate for rating purposes because the examiner did not assess whether the Veteran's neck disability may be related to his service-connected lumbar spine disability. As such, pursuant to the July 2020 Court Order, the appeal is remanded for an addendum opinion correcting the inadequacies described in the JMR. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records not already of record. 2. Schedule the Veteran for an appropriate VA examination to evaluate the current severity of his service-connected lumbar spine disability. Provide the claims file to the examiner. Request that the examiner review the files, including all the previous lumbar spine VA and private examination reports and note the review in his/her examination report.   The examiner should respond to the inquiries: a) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination must record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on "weight-bearing," then the examiner must specifically indicate why that testing cannot be done. b) The examiner must also express an opinion 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 this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. 3. Obtain an addendum opinion from the February 2016 VA examiner (or a similarly situated examiner) to determine the nature and etiology of the Veteran's claimed neck disability, to include as secondary to service-connected lumbar spine disability. The claims file and all pertinent records must be made available to the examiner and the examiner must indicate in the examination report that these records have been reviewed. The VA examiner must opine: (a) Whether it is at least as likely as not (50 percent or higher degree of probability) that the Veteran's neck disability began in or is otherwise the result of military service. (b) If not directly related to service, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or higher degree of probability) that any neck disability is caused by the Veteran’s service-connected lumbar spine disability, to include any symptomatology associated with the spine disability. (c) The examiner should then opine whether the Veteran's neck disability is aggravated (i.e., permanently worsened beyond the normal progression of that disease) by his service-connected lumbar spine disability, to include any symptomatology associated with the spine disability. In offering any opinion, the examiner must consider the full record, to include the lay statements in support of the Veteran's claim. The examiner should also reconcile any prior report, as necessary. The rationale for any opinions offered should be provided. If the VA examiner determines that further examination is necessary in order to render the requested medical   opinion, then the Veteran should be scheduled for such an examination. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.