Citation Nr: 21071571 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-24 896 DATE: November 30, 2021 REMANDED Entitlement to a rating in excess of 10 percent for lumbar spine strain with degenerative disc disease and spondylosis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from July 1985 to March 1987 and November 2008 to April 2014. This matter is before the Board of Veterans' Appeals (Board) on appeal from August 2014 and March 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board. A transcript of the hearing is of record. Entitlement to a rating in excess of 10 percent for lumbar spine strain with degenerative disc disease and spondylosis is remanded. The Board finds that a remand is necessary before a decision on the merits of the claim can be reached. This matter is on appeal from May 2014 and March 2018 rating decision. The May 2014 rating decision granted service connection for the Veteran's back disability and assigned a non-compensable rating. The March 2018 rating decision increased the rating to 10 percent, effective May 1, 2014, which is the day after the Veteran was discharged from active service. In July 2014 the Veteran was afforded a VA thoracolumbar spine conditions examination. A review of range of motion testing shows forward flexion of 0 to 90 degrees, extension from 0 to 30 degrees, right lateral flexion from 0 to 30 degrees, left lateral flexion from 0 to 30 degrees, right lateral rotation from 0 to 30 degrees, and left lateral rotation from 0 to 30 degrees. The examiner reported no objective evidence of painful motion during testing. The July 2014 examination did not comply with the holding of the United States Court of Appeals for Veterans Claims in Correia v. McDonald, 28 Vet. App. 158 (2016), which held that 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 non-weight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. The examiner failed to include range of motion testing in passive motion, weight-bearing, and non-weight-bearing circumstances. Accordingly, a remand is warranted for a new examination of the Veteran's thoracolumbar spine to conduct proper range of motion testing that complies with the criteria described in the Court's holding in Correia. By this remand, the Board makes no determination, express or implied, concerning the credibility of any lay statements on file. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding relevant private treatment records. 3. Schedule the Veteran for a VA examination to assess the current severity of her service-connected back disability. The Veteran's claims file, to include a copy of the remand, must be made available to the examiner along with any other information the medical professional deems pertinent 4. The examiner should conduct range of motion testing of the Veteran's thoracolumbar spine (expressed in degrees) on both active motion and passive motion and in both weight-bearing and non-weight-bearing. If pain on motion is observed, the examiner should indicate the point at which pain begins. Any pain, weakened movement, excess fatigability or incoordination on movement must be noted. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain the basis for this decision. 5. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss of his thoracolumbar spine due to pain or other symptoms during flare-ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. If the examiner concludes that an estimate of the range of motion during flare-ups cannot be provided without resorting to mere speculation, the examiner must support that opinion with a full and complete explanation as to why the examiner cannot provide the requested opinion without resort to mere speculation. 6. After the development described above, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If any determination remains unfavorable to the Veteran, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore, 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.