Citation Nr: 21076455
Decision Date: 12/23/21	Archive Date: 12/23/21

DOCKET NO. 20-20 639
DATE: December 23, 2021

REMANDED

Entitlement to a disability rating in excess of 20 percent for intervertebral disc syndrome (IDVS) and degenerative arthritis of the thoracolumbar spine is remanded.

REASONS FOR REMAND

The Veteran served on active duty from June 1961 to June 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

This case was previously remanded by the Board in August 2020 and May 2021.

Entitlement to a disability rating in excess of 20 percent for intervertebral disc syndrome (IDVS) and degenerative arthritis of the thoracolumbar spine is remanded.

The Board regrets further delay, but another remand is required because the June 2021 VA examination report does not substantially comply with the May 2021 remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  Specifically, despite the Board's clear instruction, there is no indication that the examiner conducted range of motion testing during weight-bearing, as required by Correia v. McDonald, 28 Vet. App. 158, 168 (2016).  As such, a new examination is necessary on remand and any updated treatment records should be secured.

The matters are REMANDED for the following action:

1. Obtain any outstanding VA treatment records.

2. With any necessary assistance from the Veteran, obtain any relevant outstanding private treatment records.

3. Afford the Veteran a VA examination by an examiner other than the February 2011, May 2018, October 2020, and June 2021 VA examiners, with sufficient expertise to fully assess the severity of the Veteran's service-connected thoracolumbar 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. Regarding flares, the Board acknowledges the examiner's findings that, although not examined during the flare-up, measures the same as active motion ranges. If the examiner finds this to be the case again, please reconcile your findings with the Veteran's statements that his flares can be moderate to severe (see June 2021 VA Examination) and that his flares require him to be laid up (see March 2021 Appellate Brief).

If the examiner finds that the Veteran does not have radiculopathy, please reconcile your findings with the September 2017 diagnosis of lumbar radiculopathy and December 2017 VA treatment record noting radicular pain and weakness.

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.

 

 

James Springer

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. J. Rogers, 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.