Citation Nr: 21031995 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 15-14 601A DATE: May 25, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for service-connected degenerative disc disease of the lumbar spine is remanded. Entitlement to a disability rating in excess of 30 percent for service-connected bilateral pes planus is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1979 to November 1983. By way of background, these claims were previously before the Board in March 2019, at which time the Board, in pertinent part, denied the Veteran's appeal for entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine, granted entitlement to a disability rating of 30 percent for bilateral pes planus prior to April 19, 2016, and denied entitlement to a disability rating in excess of 30 percent for bilateral pes planus thereafter. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims, which, in a January 2020 joint motion for partial remand, vacated and remanded the Board's denials of a rating in excess of 20 percent for degenerative disc disease of the lumbar spine and a rating in excess of 30 percent for bilateral pes planus, finding that the Board erred by failing to provide adequate reasons and bases for its denials of the aforementioned claims. The Court also found that the Board erred by not addressing whether VA's duty to assist the Veteran in the development of his claim by obtaining properly identified private medical treatment records was satisfied and by not addressing whether the medical examinations for the Veteran's lumbar spine disorder were compliant with the Court's holdings in Correia v. McDonald, 28 Vet. App. 158 (2016) (stating that an adequate orthopedic examination should record the range of motion for pain on active motion and passive motion, in weight bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint) and Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017) (stating that an examination does not need to be conducted during an actual flare-up to account for additional functional impairment, but that examiners are asked to estimate the functional impairment experienced during a flare-up, considering all competent evidence of functional loss that is available in the record). Hence, the Board will remand this matter in accordance with the Court's remand. Accordingly, the matters are REMANDED for the following action: 1. The agency of original jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all healthcare providers who have provided treatment for the disabilities on appeal, to include medical records from Dr. E.P. and Dr. J.H., and ensure that the Veteran provides the releases necessary for VA to secure any adequately identified private treatment records. The AOJ should specifically undertake reasonable efforts to obtain treatment records of the Veteran, including the referenced medical records from Dr. E.P. and Dr. J.H. The AOJ should also obtain any outstanding VA treatment records. All communication concerning attempts to obtain these records, to include negative responses, should be associated with the file. After acquiring this information and obtaining any necessary authorizations, the AOJ should obtain and associate these records with the claims file. 2. Then, 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 disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria and in compliance with the holdings in Correia and Sharp. Specifically, range of motion of the joints 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 begins. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, as well as 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 disorder alone and discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, 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 (i.e., no one could respond given medical science and the known facts), a deficiency in the record (i.e., additional facts are required), or an inability of the examiner (e.g., due to not having the requisite knowledge or training). KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Tolbert, 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.