Citation Nr: 21010756 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 16-61 681 DATE: February 25, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent prior to August 3, 2013 for lumbar spine degenerative disc and joint disease with herniated discs and bilateral foraminal stenosis (formerly rated as lumbar spine arthritis) is remanded. Entitlement to a disability rating in excess of 20 percent from June 7, 2016 for lumbar spine degenerative disc and joint disease with herniated discs and bilateral foraminal stenosis (formerly rated as lumbar spine arthritis) is remanded. Entitlement to a disability rating in excess of 40 percent from February 28, 2013 to August 3, 2013, and from June 7, 2016 for the left lower extremity radiculopathy associated with lumbar spine degenerative disc and joint disease with herniated discs and bilateral foraminal stenosis is remanded. Entitlement to a disability rating in excess of 20 percent prior to February 28, 2013 for right lower extremity radiculopathy associated with lumbar spine degenerative disc and joint disease with herniated discs and bilateral foraminal stenosis is remanded. Entitlement to a disability rating in excess of 40 percent from February 28, 2013 to August 3, 2013, and from June 7, 2017 for right lower extremity radiculopathy associated with lumbar spine degenerative disc and joint disease with herniated discs and bilateral foraminal stenosis is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1973 to November 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been pending for many years and has a lengthy procedural history. Most recently, in an August 2019 decision, the Board denied the Veteran’s claim for entitlement to a disability rating in excess of 20 percent for lumbar spine degenerative disc and joint disease with herniated discs and bilateral foraminal stenosis prior to August 3, 2013 and as of June 7, 2016. However, the Board granted the Veteran entitlement to a 60 percent disability rating, but no higher, for lumbar spine degenerative disc and joint disease with herniated discs and bilateral foraminal stenosis from August 3, 2013 to June 6, 2016. The Veteran appealed the denial from the August 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the parties filed a Joint Motion for Partial Remand (JMPR) moving for vacatur of the August 2019 decision’s denial. On September 14, 2020, the Court issued an Order granting the JMPR and remanding the matter to the Board for further development and proceedings pursuant to 38 U.S.C. § 7252(a). In the JMPR, the parties agreed that VA did not make an adequate effort to acquire all of the Veteran’s VA treatment records. The parties also agreed that the May 2012 and June 2016 VA examinations did not address both active and passive motion, in weight bearing and non-weight bearing, or flare-ups. The Veteran’s representative indicated that the Veteran does not challenge the part of the Board’s decision that denied the claim of entitlement to a rating in excess of 60 percent for lumbar spine degenerative disc and joint disease with herniated discs and bilateral foraminal stenosis from August 3, 2013 to June 6, 2016. 1. Entitlement to a disability rating in excess of 10 percent prior to August 3, 2013 for lumbar spine degenerative disc and joint disease with herniated discs and bilateral foraminal stenosis (formerly rated as lumbar spine arthritis) is remanded. 2. Entitlement to a disability rating in excess of 20 percent from June 7, 2016 for lumbar spine degenerative disc and joint disease with herniated discs and bilateral foraminal stenosis (formerly rated as lumbar spine arthritis) is remanded. 3. Entitlement to an initial disability rating in excess of 40 percent from February 28, 2013 to August 3, 2013, and from June 7, 2016 for the left lower extremity radiculopathy associated with lumbar spine degenerative disc and joint disease with herniated discs and bilateral foraminal stenosis is remanded. 4. Entitlement to a disability rating in excess of 20 percent prior to February 28, 2013 for right lower extremity radiculopathy associated with lumbar spine degenerative disc and joint disease with herniated discs and bilateral foraminal stenosis is remanded. 5. Entitlement to a disability rating in excess of 40 percent from February 28, 2013 to August 3, 2013, and from June 7, 2017 for right lower extremity radiculopathy associated with lumbar spine degenerative disc and joint disease with herniated discs and bilateral foraminal stenosis is remanded. The Veteran contends that he should receive a higher rating for his lumbar spine degenerative disc and joint disease with herniated discs and bilateral foraminal stenosis (formerly rated as lumbar spine arthritis) condition and his bilateral lower extremity radiculopathy. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claim for VA benefits. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The duty to assist was not met when the VA failed to obtain an adequate VA examination for the Veteran’s lumbar spine disabilities. The case law is clear that once the Secretary undertakes the effort to provide an examination when developing a service-connection claim, he must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In May 2012 and June 2016, the Veteran was afforded an examination for his back condition. These examinations were inadequate because the examinations did not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Specifically, in the May 2012 and June 2016 VA examinations, neither examiner included the results of passive and non-weight bearing ranges of motion. In addition, these examinations were inadequate because the examiners did not provide an adequate explanation to the extent of the Veteran’s impairments by estimating the severity of the Veteran’s lumbar spine disability during flare-ups. Thus, a remand is necessary to obtain a VA examination to determine the nature and severity of the Veteran’s service-connected lumbar spine degenerative disc and joint disease with herniated discs and bilateral foraminal stenosis (formerly rated as lumbar spine arthritis) condition. In addition, the Veteran identified there were records missing in his file. Specifically, in the Veteran’s October 2017 application for non-service-connected pension, the Veteran stated that he has received VA treatment for his back through September 2017, however, the most recent VA records or record at the time of the JMPR are from October 2016. The current records include some notations from 2020, but do not include any records between October 2016 and September 2017. Thus, a remand is required to obtain any outstanding VA records. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the evidence of record before the Board. 2. With any necessary assistance from the Veteran, obtain any relevant outstanding private treatment records. 3. Then, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected lumbar spine disability. The examination should include all studies, tests, and evaluations deemed necessary by the examiner. The examiner should report all manifestations related to the service-connected lumbar degenerative disease (low back) disability. The record and a copy of this Remand must be made available to and reviewed by the examiner. The examiner must address the following: (a.) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), and 38 C.F.R. § 4.59, the examiner should record the results of range-of-motion testing for pain on both active and passive motion and in weight-bearing and nonweight-bearing. 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. (b.) In recording the ranges of motion for the Veteran’s thoracolumbar spine, the examiner should note whether, upon repetitive motion, there is any pain, weakened movement, excess fatigability, or incoordination of movement, and whether there is likely to be additional functional loss due to pain on use, weakened movement, excess fatigability, or incoordination over time. The examiner should also indicate whether the Veteran experiences additional functional loss during flare-ups of the service-connected low back disability. If there is no pain, no limitation of motion, and/or no limitation of function, such facts must be noted in the report. (c.) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range-of-motion loss. If the Veteran indicates that he does not have flare-up, include the Veteran’s responses as a narrative. If the functional impact is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. (d.) Conduct neurological testing to assess the nature and severity of the Veteran’s service-connected radiculopathy of the bilateral lower extremity that is associated with the service-connected lumbar spine disability. 4. The AOJ must review this opinion to ensure it is adequate and complies with the Board’s specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). (Continued on the next page)   5. Then, the Veteran’s claim must be readjudicated. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.