Citation Nr: 21068105 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-30 836 DATE: November 9, 2021 REMANDED Entitlement to a rating in excess of 20 percent for degenerative disc disease is remanded. Entitlement to a total disability rating due to unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1979 to July 1990, with additional periods of reserve service. This matter came before the Board of Veterans Appeals (Board) on appeal from an April 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran has a pending appeal regarding an increased rating and earlier effective date for depression. In a March 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected to appeal this issue in the modernized Evidence Submission docket. This issue will therefore be addressed in a separate decision. 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease is remanded. The Board finds that remand for a new VA examination is required as the spine examinations of record are inadequate for review. VA spine examinations were provided in June 2012 and February 2017. The June 2012 VA examination is inadequate as it lacks some of the required range of motion testing results. Since this examination was conducted, the U.S. Court of Appeals for Veteran's Claims (the Court) has issued the decision in Correia v. McDonald, 28 Vet. App. 158, 166 (2016) concerning the adequacy of VA orthopedic examinations. The Court in Correia 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 non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Board's review indicates that the June 2012 VA examination of record did not include the testing required under Correia and that remand for a new examination is required. At the February 2017 VA spine examination, the examiner found pain on range of motion testing and stated that it caused functional loss but did not indicate the point in the range of motion that pain began. This does not allow the Board to properly assess the functional impairment caused by the disability. Examinations for joint disabilities generally must include range of motion measurements. Id. In conducting these measurements, the examiner should note when any incoordination, weakened movement, or excess fatigability sets in. Id. The examiner should also note whether pain on motion is present, and, if so, where in the range of motion the pain sets in and whether that pain causes functional loss. Id. As the February 2017 examiner did not provide the necessary information regarding pain, remand is required to obtain an accurate picture of the Veteran's level of functional impairment. 2. Entitlement to a total disability rating due to unemployability (TDIU) is remanded. As discussed above, additional development has been ordered to address the issue of entitlement to an increased rating for a lumbar spine disability, to include a new VA examination assessing the level of the Veteran's functional impairment. As that examination is likely to produce information relevant to the issue of entitlement to a total disability rating due to unemployability (TDIU), this issue must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when the adjudication of one issue could have "significant impact" on the other issue). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his lumbar spine disability. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all lumbar spine pathology and associated neurological impairments found to be present. The examiner should conduct range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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 that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Bock 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.