Citation Nr: 21004632 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 15-00 800 DATE: January 27, 2021 THE ISSUE Entitlement to an increased disability rating in excess of 10 percent prior to August 27, 2020, and of 20 percent thereafter for a thoracolumbar spine disability (previously claimed as low back strain). REMANDED Entitlement to an increased disability rating in excess of 10 percent prior to August 27, 2020, and 20 percent thereafter for a thoracolumbar spine disability (previously claimed as low back strain) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from September 1981 to June 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This matter was previously before the Board in September 2018 at which time it was remanded for further development. Subsequent to the Board decision, the RO issued a September 2020 rating decision granting an increased disability rating of 20 percent for the Veteran’s thoracolumbar spine disability effective on August 27, 2020. The Board notes that this does not represent a full grant of the benefit sought, and therefore entitlement to an increased rating is still on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Although the Board regrets the additional delay, it finds that an additional remand is necessary. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Entitlement to an increased disability rating in excess of 10 percent prior to August 27, 2020, and 20 percent thereafter for a thoracolumbar spine disability (previously claimed as low back strain) is remanded. In the September 2018 Board remand, the Board found that the May 2010 and May 2017 VA examinations did not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Specifically, the Board found the examinations did not contain the point at which pain was objectively present on range of motion testing and did not contain range-of motion measurements for the flare-ups reported by the Veteran. Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Upon remand, the Board instructed the RO to obtain up to date VA treatment records and treatment records from Langley Family Health Clinic at Langley Air Force Base, Virginia, for the period from March 2015 to the present. The Board directed the RO to obtain a new VA examination for the Veteran’s claimed back disability only after obtaining the above-mentioned medical records. Prior to obtaining the Veteran’s treatment records from Langley Family Health Clinic at Langley Air Force Base, Virginia, for the period from March 2015, as required by the September 2018 Board remand directives, the RO scheduled the Veteran for a VA examination of the thoracolumbar spine in September 2019. In addition to being conducted prior to obtaining private treatment records, the September 2019 VA examination did not conduct passive range of motion testing for the thoracolumbar spine, and did not explain beyond the statement: “cannot perform or is not medically appropriate.” After obtaining the private treatment records from Langley Family Health Clinic at Langley Air Force Base, Virginia, for the period from March 2015 to the present, the Veteran was again afforded a VA examination of the thoracolumbar spine in September 2020. The VA examiner indicated that the Veteran’s back disability was now properly diagnosed as intervertebral disc disorder and explained that this was a progression of the previous diagnosis. The examiner recorded that passive range of motion testing was not performed “as it is not feasible to do this in a safe and reasonable manner;” however, the examiner did not make a non-weight bearing assessment, stating it was “not applicable” but providing no additional explanation. The Board finds that the September 2019 and September 2020 VA examinations do not comply with the September 2018 Board remand directives, nor do they comply with the requirements in Correia, 28 Vet. App. 158, 168 (2016). Stegall, 11 Vet. App. 268, 270-71 (1998). Finally, the Board notes that the VA examinations prior to August 27, 2020 do not record a finding of muscle spasms resulting in abnormal gait. However, at various points throughout the period prior to August 27, 2020, the Veteran’s treatment records have recorded muscle spasms. Additionally, the Veteran has submitted buddy statements from co-workers that describe witnessing the Veteran walking abnormally due to back pain. See April 2013 Buddy-Statements. In Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), the United States Court of Appeals for Veterans Claims found that once VA undertakes the effort to provide an examination, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. As such, remand with new examination is required to address the issues identified above. The matters are REMANDED for the following action: 1. Obtain any outstanding and pertinent VA and/or private treatment records. Should such exist, associate them with the claims folder. 2. After, and only after, completion of step one above, schedule the Veteran for an examination of the current severity of his thoracolumbar spine disability with an appropriate medical professional. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If any of these measurements cannot be obtained a thorough explanation as to why that is the case must be provided. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to thoracolumbar spine disability alone and discuss the effect of the Veteran's thoracolumbar spine disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). The examiner is also requested to review the VA examinations containing range of motion findings pertinent to the Veteran's back disability conducted during the period prior to August 27, 2020 on which the Veteran's back range of motion was recorded. With regard to each examination, the examiner is requested to offer an opinion as to the range of motion findings for pain on both active and passive motion, on weight-bearing and non-weight-bearing. If the examiner is unable to do so, he or she should explain why. The examiner must review the Veteran’s claims file, including imaging studies revealing arthritis of the thoracolumbar spine. The examiner must also address the lay statements from the Veteran and his coworkers regarding his claimed disabilities. Specifically, for the period prior to August 27, 2020, the examiner should address the buddy-statements that describe the Veteran ambulating abnormally due to back pain. Additionally, the examiner should address the Veteran’s complaints and clinical documentation of muscle spasms noted in his private treatment records prior to August 27, 2020. In light of this evidence, the examiner must provide an opinion as to whether the Veteran suffered from muscle spasms that resulted in an abnormal gait during any period(s) prior to August 27, 2020. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). (Continued on next page.) 3. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Geary, 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.