Citation Nr: 21000886 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 13-09 794 DATE: January 6, 2021 REMANDED Entitlement to an initial disability rating in excess of 20 percent for lumbosacral disc disease with intervertebral disc syndrome (IVDS) is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected disabilities is remanded. INTRODUCTION The Veteran had active duty service with the United States Navy from January 2007 to January 2010. When this case was previously before the Board in July 2017 and April 2020 the above-noted issues were remanded for further development. The case has since been returned for additional appellate review. REASONS FOR REMAND Though unfortunate, the Board finds further development is again required before the Veteran’s claims are decided. Initially, the Board observes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court determined the final sentence of 38 C.F.R. § 4.59 requires VA examinations to 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. While the spine is not a paired joint such that range of motion measurements for the opposite undamaged joint are not necessary, under Correia there is a need for testing for pain on both active and passive motion and, if possible, when weight-bearing and nonweight-bearing. In the course of the most recent September 2020 VA back examination, the examiner indicated objective evidence of pain was elicited on both passive and non-weight bearing testing; however, the examiner failed to provide passive and non-weight bearing range of motion assessments. Therefore, this examination contains fatal deficiencies, and a remand is necessary to obtain an examination that satisfies sufficiency standards. Next, the Board notes that in the course of the April 2020 decision the Board found prior nexus opinions to be insufficient with respect to the Veteran’s right knee disability claim. The Veteran underwent another VA examination in September 2020. Following this examination, the examiner concluded a medical opinion as to the etiology of the Veteran’s right knee disability could not be provided, because there was no pathology of a right knee condition to render an opinion. However, the examiner failed to acknowledge or discuss the iliotibial band syndrome, which was diagnosed during the Veteran’s November 2019 VA examination. The Court has held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary’s adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). As such, the Board finds a remand is necessary in order to obtain a VA examination and medical opinion addressing all diagnosed knee disabilities that have been present during the pendency of his claim. The Veteran’s TDIU claim is inextricably intertwined with the other claims being remanded herein. As such, a remand for contemporaneous consideration is warranted. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected lumbar spine disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 2. The Veteran should be afforded an examination by an examiner with sufficient expertise, who has not previously examined this Veteran, to determine the etiology of his right knee disability. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether it is at least as likely as not (a 50 percent probability or greater) that any right knee disability diagnosed during the pendency of this appeal: a) originated during his period of active service or is otherwise etiologically related to his active service; b) was caused by his service-connected lumbar spine disability, with consequentially related sciatica; or c) was worsened to any degree by his service-connected lumbar spine disability, with consequentially related sciatica. The examiner must provide a complete rationale for any proffered opinion. In this regard, the examiner must discuss and consider the Veteran’s competent lay statements, and assume such statements are credible for purposes of the opinions. Additionally, the examiner is asked to specifically consider and discuss the November 2019 diagnosis of iliotibial band syndrome. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Finally, a medical opinion should be obtained from a VA examiner addressing the occupational effects caused by the Veteran’s service-connected disabilities. The examiner should provide concrete examples of functional impairments caused by the Veteran’s service-connected conditions, to include the medications taken for each disability. The types of impairments the examiner should address include, but are not limited to, walking, sitting, lifting and standing limitations, impaired ability to interact socially, as well as problems with memory and concentration. The examiner must discuss and consider the Veteran’s competent lay statements. In addition, the examiner should comment on whether there is a 50 percent or better probability that the Veteran’s service-connected disabilities, either alone or in concert, are sufficiently disabling to preclude him from obtaining or maintaining any form of substantially gainful employment consistent with his education and occupational background. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Fraser, 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.