Citation Nr: 21015999 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 14-25 043A DATE: March 19, 2021 REMANDED Entitlement to a rating in excess of 20 percent for a back disability is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Marine Corps from September 1990 to August 1991. In December 2016, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the regional office (RO) and a transcript of that hearing has been associated with the record. In February 2018 the Board of Veterans’ Appeal (Board), among other things, remanded the above claim for additional development. In October 2019, the Board denied the Veteran’s claim for an increased rating for his back disability. The Veteran appealed the October 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 order, that incorporated the parties Joint Motion for Remand (JMR), the Court vacated and remanded the October 2019 Board decision. Entitlement to a rating in excess of 20 percent for a back disability is remanded The Court vacated and remanded the October 2019 Board decision that denied the Veteran’s claim for an increased rating for his back disability because, among other things, the June 2019 VA examination it relied upon when adjudicating the claim was found not adequate. Specifically the JMR found the June 2019 VA examination inadequate because, while the examiner reported that the Veteran’s back “pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use, and that pain specifically caused increased functional loss,” the examiner “when asked to estimate the range of motion following repeated use the examiner provided the same range of motion measurements as the initial examination.” Given the language found in the JMR, the Board finds that another remand is required to provide the Veteran with a new VA examination to reconcile the June 2019 VA examiner’s opinion and to thereafter obtain range of motion studies of the back which take into account the “significantly limited functional ability” caused by back “pain, weakness, fatigability or incoordination … with repeated use…”. See 38 U.S.C. § 5103A(d); Forcier v. Nicholson,19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion to remand); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (Board has a duty on remand to ensure compliance with the favorable terms stated in the joint motion for remand or explain why the terms will not be fulfilled); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Next, the Board notes that since the appeal was last before the Board VA amended some of its’ criteria for rating musculoskeletal disabilities including the back under 38 C.F.R. § 4.71a, effective February 7, 2012. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). Therefore, the Board finds that a Remand is also required for the RO to provide the appellant with a new supplemental statement of the case (SSOC) which provide the Veteran with notice of the new musculoskeletal rating criteria and adjudicates the claim applying these criteria. See 38 C.F.R. § 19.31 (a SSOC will be furnished to the veteran when additional pertinent evidence is received after a statement of the case has been issued). In this regard, when again rating the Veteran’s disability the RO should be mindful of the fact that it may only apply the new rating criteria for the back from the effective date of the change in the Diagnostic Code- February 7, 2012. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). While the appeal is in Remand status any outstanding VA and private treatment records should also be obtained and associated with the record. See 38 U.S.C. § 5103A(b). The appeal is REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA treatment records (if any). 2. After obtaining all needed authorizations from the Veteran, associate with the claims file any outstanding private treatment records (if any). If possible, the Veteran himself should submit and new pertinent evidence the Board/VA does not have (if any). This would include any recent VA treatment. Any help with the above would be appreciated. 3. In order to comply with the JMR, schedule the Veteran for a VA examination with a suitably-qualified medical professional to address the severity of his back disability. The claims file should be made available and reviewed by the examiner in conjunction with conducting the examination. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. After a review of the claims file, any needed testing, and an examination of the Veteran, the examiner should provide answers to the following questions: (a) The examiner should identify all back musculoskeletal and neurological pathology found to be present during the pendency of the appeal. (b) The examiner should conduct all indicated tests and studies, to include range of motion studies. (c) In order to comply with Correia v. McDonald, 28 Vet. App. 158 (2016), the joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. The examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. In order to comply with the JMR, the range of motion studies must attempt to reconcile the June 2019 VA examiner’s opinion that the Veteran’s back’s range of motion did not worsen despite his opinion that the appellant’s back “pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use, and that pain specifically caused increased functional loss.” In other words, the examiner based on the results of the examination, a history taken from the Veteran, and the adverse back symptomatology documented in the appellant’s treatment records should provide range of motion estimates taking into account the fact that the appellant’s back “pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use, and that pain specifically caused increased functional loss.” (d) In order to comply with the Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner should also state whether the examination is taking place during a period of flare-up. If the examination is taking place during a flare-up, the examiner should provide range of motion estimates in both active and passive motion, in weight-bearing and non-weight-bearing during the flare-up. If the examination is NOT taking place during a flare-up, 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 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 back flexion, extension, side to side, and rotation caused by functional loss during a flare-up and after repeated use over time. (e) The examiner should also state the number of weeks of incapacitating episodes caused by the back disability in each 12-month period during the pendency of the appeal. (f) The examiner should state the nature, extent, and severity of any loss of sphincter and bladder control caused by the service-connected disability. (g) In order to comply with the JMR, the examiner should state the nature, extent, and severity of any right and/or left leg radiculopathy. If the Veteran does not have radiculopathy in either lower extremity due to his back disability, the examiner must say so. If the examiner cannot provide any the above range of motion estimates without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). If the examiner cannot provide any of the range of motion estimate without resorting to speculation because of a deficiency in the record or the examiner, all appropriate steps should be taken to correct the deficiency. In providing the opinions, the examiner should consider the Veteran’s competent lay claims regarding observable symptomatology. The examination report must include a complete rationale for all opinions expressed. (Continued on the next page)   4. In order to comply with the JMR, after undertaking the above development, the RO should issue the Veteran a SSOC that, among other things, adjudicates and provides the appellant with notice of the new musculoskeletal Diagnostic Codes as well as considers whether he is entitled to separate compensable ratings for any residual right and/or left leg radiculopathy. See 85 Fed Reg 76453 (November 30, 2020); 85 Fed Reg 85523 (December 29, 2020); 86 Fed Reg 8142 (February 4, 2021). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.T. Werner, 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.