Citation Nr: 21008535 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 16-48 469 DATE: February 17, 2021 REMANDED Entitlement to a rating in excess of 10 percent for lumbosacral strain prior to December 5, 2017 is remanded. Entitlement to a rating in excess of 20 percent for lumbosacral strain since December 5, 2017 is remanded. Entitlement to a separate neurological disability rating for the right lower extremity is remanded. Entitlement to a separate neurological disability rating for the left lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1976 to November 1979. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a July 2019 decision, the Board, in pertinent part, denied a rating higher than 10 percent for the Veteran’s low back disability for the period prior to December 5, 2017, and granted a 20 percent rating, but no higher, effective December 5, 2017. In an August 2020 Order, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand (JMPR) and vacated the Board’s decision to the extent it denied higher ratings for the Veteran’s low back disability. The Court remanded the matters identified in the JMPR for action consistent with the terms of the joint motion. In the JMPR, the parties agreed that the July 2015 and December 2017 VA examinations were inadequate because they did not include the results of range-of-motion testing of the lumbar spine in nonweight-bearing, or explain why such testing could not be conducted, as required under Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). Therefore, the JMPR found that remand is warranted for an examination that complies with the range-of-motion testing requirements discussed in Correia, including range of motion testing results for pain on nonweight-bearing motion. Accordingly, remand is warranted for a new examination that satisfies the testing requirements under Correia. The JMPR further found that, in its July 2019 decision, the Board did not provide an adequate statement of reasons or bases in support of its finding that a rating in excess of 10 percent was not warranted prior to December 5, 2017. As the evaluation of the Veteran’s low back disability is being remanded for further development, the Board will not address that issue at this time. Finally, the parties to the JMPR agreed that the Board failed to address whether the Veteran was entitled to separate ratings for associated neurologic abnormalities affecting one or both lower extremities. In this regard, the JMPR notes that July 2015 VA examination report reflects that he complained of low back pain radiating down both his legs, and that VA treatment records dated in 2017 show complaints of low back pain that occasionally radiated to his right hip and leg. The examination that is to be conducted pursuant to this remand may affect the outcome of that issue; accordingly, the Board will not address it at this time. The matter is REMANDED for the following actions: 1. Arrange for a VA examination to assess the severity of the Veteran’s lumbar spine disability. As part of a thorough examination, the examiner must test for pain on both active and passive range of motion testing, and in both weight-bearing and nonweight-bearing, and provide the range of motion measurements for each test. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. The examiner must also state whether the Veteran has an associated neurologic abnormality affecting the right and/or left lower extremities. If so, the examiner must identify the nerve(s) involved and provide all relevant examination results; the appropriate section of the VA Disability Benefits Questionnaire should be filled out for that purpose. 2. In readjudicating the claim, the agency of original jurisdiction should determine whether separate ratings may be assigned for any associated neurologic abnormalities affecting the Veteran’s lower extremities. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ragofsky, Attorney Advisor 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.