Citation Nr: 21072302 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 14-15 324A DATE: December 2, 2021 REMANDED Entitlement to an initial evaluation in excess of 10 percent from August 16, 2011 to June 3, 2014, and an evaluation in excess of 20 percent from June 4, 2014 to the present, for thoracic disc herniation at T6-7 and lumbar disc herniation at L1-2 (hereinafter a "thoracolumbar spine disability") is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from January 2003 to August 2003, from January 2005 to January 2006, and from February 2007 to June 2007 with additional service in the Marine Corps Reserves from July 2002 to January 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for mild lumbar degenerative disc disease and assigned a noncompensable evaluation, effective August 16, 2011. The Veteran appealed for a higher initial evaluation. During the pendency of the appeal, in February 2014, the RO granted a 10 percent evaluation for lumbar degenerative disc disease with bilateral radiculopathy, effective August 16, 2011. In September 2016, the RO granted a 20 percent evaluation for thoracic disc herniation at T6-7 and lumbar disc herniation at L1-2, effective March 20, 2016; and granted service connection for right lumbar radiculopathy and assigned a 10 percent evaluation, effective March 20, 2016. The Veteran continued to appeal for a higher initial evaluation for a thoracolumbar spine disability. AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claimant is presumed to be seeking the maximum rating). The case was initially brought before the Board in February 2018, at which time the Board, in pertinent part, remanded the claim for entitlement to a higher initial evaluation for a thoracolumbar spine disability. The case was returned to the Board. In October 2019, the Board denied the claim for entitlement to a higher than 10 percent evaluation prior to June 4, 2014 for a thoracolumbar spine disability; granted a 20 percent evaluation from June 4, 2014 for a thoracolumbar spine disability; granted a separate 10 percent evaluation for left lumbar radiculopathy, effective August 16, 2011; and granted a separate 10 percent evaluation for right lumbar radiculopathy from August 16, 2011 to March 20, 2016. The Veteran appealed the October 2019 decision to the U.S. Court of Appeals for Veterans Claims (Court). In an April 2021 memorandum decision, the Court vacated the portion of the October 2019 Board decision denying higher evaluations for the Veteran's thoracolumbar spine disability and remanded the matter for further proceedings consistent with the decision. The Court also found that the Veteran had abandoned his appeal for higher evaluations for right and left lumbar radiculopathy, because he had not raised any arguments concerning their denials; therefore, the Court dismissed the appeal for those claims. The case has been returned to the Board. In October 2021, the Veteran submitted a motion to the Board to advance his case on the docket. The Veteran did not provide a reason for his request. Pursuant to 38 C.F.R. § 20.800(c), a case may be advanced on the docket only if the case involves interpretation of law of general application affecting other claims, if the appellant is seriously ill or is under severe financial hardship, or if other sufficient cause is shown, such as advanced age. The Veteran has not alleged, and the record does not otherwise show, sufficient cause for advancing the case on the docket. As such, the motion is denied. 38 U.S.C. § 7107(b); 38 C.F.R. § 20.800(c). 1. Entitlement to an initial evaluation in excess of 10 percent from August 16, 2011 to June 3, 2014, and an evaluation in excess of 20 percent from June 4, 2014 to the present, for a thoracolumbar spine disability is remanded. As discussed above, in its April 2021 memorandum decision, the Court vacated the portion of the October 2019 Board decision denying higher evaluations for a thoracolumbar spine disability prior to and since June 4, 2014 and remanded the matter for further proceedings consistent with the decision. With regard to the appeal for a higher than 10 percent evaluation for the Veteran's thoracolumbar spine disability for the appeal period prior to June 4, 2014, the Court noted that in the October 2019 Board decision, the Board assigned no probative value to the range of motion (ROM) measurements reported at the November 2011, March 2012, and August 2013 VA examinations because of the VA examiners' findings of symptom magnification. The Court agreed with the Veteran's argument that the Board should have addressed the lay observations provided by the Veteran's mother and wife attesting to the severity of his back disability as well as the private treatment records and private physicians' letters when evaluating the Veteran's reliability. Because the Board did not address this evidence, the Court found that a remand was warranted. With regard to the appeal for a higher than 20 percent evaluation for the Veteran's thoracolumbar spine disability for the appeal period since June 4, 2014, the Court noted that the Board found, in its October 2019 decision, that the May 2019 VA examination had complied with the holding of Correia v. McDonald, 28 Vet. App. 158 (2016) and was adequate. In Correia, the Court 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 nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Id. at 169-170. In a prior February 2018 remand, the Board had remanded the appeal to obtain a new VA examination to comply with Correia. The remand specifically included instructions that the VA examiner should provide range of motion testing in active and passive motion and should also discuss weight-bearing and nonweight-bearing ranges. If such were not applicable, the examiner should explain why. First, the Veteran asserts that the May 2019 VA examination did not comply with the February 2018 remand instructions, because it did not provide weight-bearing and nonweight-bearing ranges. Second, the Veteran also contends that the May 2019 VA examination provided internally inconsistent findings, because it found that pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use and during flare-ups, yet the recorded ROM estimates were nearly identical to, or less limited than, the initial or active ROM measurements. Finally, the Veteran also asserts that those estimates appeared inconsistent with his reports of being unable to get out of bed during flares. The Court found that the October 2019 Board decision did not discuss the adequacy of the May 2019 VA examination, so the Court was unable to review the Board decision and assess the Veteran's arguments. The Court found that a remand was warranted for the Board to provide a more thorough statement of reasons or bases for finding the May 2019 VA examination is adequate and in substantial compliance with prior Board remand instructions. Based on the findings of the Court's April 2021 memorandum decision and a review of the record, the Board finds that further development is necessary before adjudicating the higher evaluation claim for a thoracolumbar spine disability. At the May 2019 VA examination, the VA examiner did not conduct ROM testing on weight-bearing or nonweight-bearing or explained why such testing was not applicable in this case. Thus, the VA examiner did not comply with the February 2018 remand instructions. Furthermore, the May 2019 VA examiner noted on the examination report that pain was noted on examination following the active ROM testing, however, the VA examiner did not indicate which ROM exhibited pain, as specifically required on the report. So, in addition, the VA examination was also inadequate on this basis. Because the May 2019 VA examination did not substantially comply with the February 2018 remand instructions and did not contain the necessary information for rating purposes, the Board finds that a remand is required to obtain a new VA examination for the Veteran's thoracolumbar spine disability. See Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following actions: 1. Obtain all the outstanding treatment records for the Veteran's thoracolumbar spine disability that are not currently of record. 2. Schedule the Veteran for a VA examination by an appropriate clinician (M.D.) to determine the current severity of his service-connected thoracolumbar spine disability. To the extent possible, the examiner should provide current findings regarding all symptoms associated with the service-connected thoracolumbar spine disability and should opine as to its severity. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the service-connected thoracolumbar spine disability. 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 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 his thoracolumbar spine 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 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 should comment on the extent of any functional impairment caused by the Veteran's service-connected thoracolumbar spine disability, to include in an occupational setting and in performing ordinary, daily activities. All findings should be fully documented in the examination report. 3. To avoid another remand, the Agency of Original Jurisdiction (AOJ) must review the requested development and ensure that the Board's specific instructions have been completed in full. If any development is found to be inadequate, it must be returned to the providing examiner for corrective action. If such corrective action is not requested, then the Board will be required to return the case to the AOJ for substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998). 4. After ensuring the above development has been completed, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. Then, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Journet Shaw, 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.