Citation Nr: 21027142 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-44 911 DATE: May 4, 2021 REMANDED Entitlement to an initial disability rating greater than 10 percent for intervertebral disc syndrome (IVDS) with degenerative arthritis of the thoracolumbar spine greater than 10 percent prior to October 10, 2019, and a staged initial rating greater than 20 percent thereafter is remanded. Entitlement to an initial disability rating greater than 10 percent for left lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from February 1992 to February 1996 and in the United States Army from January 2003 to March 2004. The Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2016. A transcript of that hearing is associated with the claims file. 1. Entitlement to an initial disability rating greater than 10 percent for IVDS with degenerative arthritis of the thoracolumbar spine greater than 10 percent prior to October 10, 2019, and a staged initial rating greater than 20 percent thereafter is remanded. The Board regrets the additional delay, but finds that remand is warranted to ensure compliance with its February 2019 remand directives. In its February 2019 Remand, the Board directed that the Agency of Original Jurisdiction (AOJ) provide the Veteran with a new VA examination to assess the severity of his lumbar spine disability. The Board's directives requested that the examiner conduct and report range of motion of the thoracolumbar spine in active and passive motion, and in weight-bearing, and nonweight-bearing conditions, pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016) (the final sentence of 38 C.F.R. § 4.59 provides that the joints involved should be tested for pain on both active and passive range of motion, in weight-bearing and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint. To be adequate, a VA examination of the joints must include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59). The Board specifically advised that, "[i]f 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 Veteran was provided with a VA spine examination in October 2019. The VA examiner provided range of motion findings for the thoracolumbar spine, and also provided estimated range of motion findings after repetitive use, after repeated use over time, and during flare-ups. However, while the VA examiner reported that the Veteran experienced pain with range of motion which caused functional loss, the examiner did not indicate the point at which pain began. Additionally, the examiner did not provide range of motion findings in passive motion or in weight-bearing and nonweight-bearing conditions. The Board acknowledges the examiner's notation that passive range of motion "[c]annot be performed or is not medically appropriate." However, the examiner provided no explanation for this conclusion, as specifically requested by the Board in its February 2019 Remand. Accordingly, the Board concludes that the October 2019 VA examination findings do not sufficiently comply with Correia or the Board's February 2019 Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance). Therefore, remand for a new VA examination is warranted. 2. Entitlement to an initial disability rating greater than 10 percent for left lower extremity radiculopathy is remanded. The claim for entitlement to an increased rating for left lower extremity radiculopathy is inextricably intertwined with the claim for a higher rating for a lumbar spine disability, as the disability benefits questionnaire for the lumbar spine may contain findings pertinent to the severity of the left lower extremity radiculopathy. As a result, the examination requested may reveal more severe symptomatology entitling the Veteran to a higher rating for the radiculopathy in his left lower extremity. Thus, this claim will be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: Schedule the Veteran for a VA examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disorder. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. Range of motion of the thoracolumbar spine should be reported in degrees, noting by comparison the normal range of motion. The examiner should also test and report the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If there is pain on range of motion, the examiner must state at which point pain began. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due the lumbar spine disability alone and discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living. The examiner must also state whether the Veteran has intervertebral disc syndrome; if so, the examiner must state whether the Veteran experiences incapacitating episodes requiring bedrest prescribed by a physician and treatment by a physician, and note the frequency and total duration of such episodes over the course of the past 12 months. (Continued on the next page) If it is not possible to provide a specific measurement requested above, 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 must also address the severity of the Veteran's left lower extremity radiculopathy. The examiner should identify the specific nerves involved and indicate the degree of paralysis (i.e. complete paralysis or mild, moderate, or severe incomplete paralysis) in the affected nerve(s). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Katz, 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.