Citation Nr: 21032424 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-59 381 DATE: May 27, 2021 REMANDED Entitlement to an increased evaluation of degenerative disc disease, previous fusion of L5-S1 (formerly rated as L5 spondylosis with Causalgia of the left 4th and 5th Intercostal Nerves), which is currently 60 percent disabling, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from July 1979 to November 1980. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, a hearing was held before the undersigned Veterans Law Judge. As this case requires a remand, the Board will expedite the decision and a copy of the transcript will be added to the claims folder at a later date. The Veteran is seeking a rating higher than 60 percent for his service-connected degenerative disc disease. He has been assigned the maximum schedular rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based Upon Incapacitating Episodes. The General Formula for Rating Injuries and Diseases of the Spine instructs the rater to evaluate objective neurologic abnormalities "separately, under an appropriate diagnostic code." 38 C.F.R. § 4.71a , General Formula for Rating Injuries and Diseases of the Spine, Note (1). A higher rating may be potentially be obtained by combining the evaluations for the orthopedic and neurologic manifestations of lumbar spine IVDS. The Veteran's degenerative disc disease was last evaluated in September 2016. The mere passage of time, alone, since an otherwise adequate examination, does not obligate VA to have the Veteran reexamined simply as a matter of course. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (the passage of time alone, without an allegation of worsening, does not warrant a new examination). However, on the November 2017 Form 9, the Veteran suggested a worsening of his degenerative disc disease, describing "very bad pain" and numbness in his knees, ankles, hands, and toes. Further, the Veteran submitted treatment records which note numbness in his lower left extremity. He testified to undergoing lumbar spine surgery in 2019 with continued neurologic abnormalities of his lower extremities. Therefore, remand is required to afford the Veteran a more contemporaneous examination to determine the current severity of his degenerative disc disease. The matters are REMANDED for the following action: 1. The AOJ shall associate the Veteran's most recent outstanding VA medical treatment records with his file. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected degenerative disc disease and any associated neurologic symptoms. 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. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner is asked to describe whether pain, weakness, or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. Also, in order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: active motion; passive motion; weight-bearing; and non-weight-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. The VA examiner should provide a complete rationale for any opinions provided. The examiner is additionally requested to identify all neurologic complications which are either deemed part and parcel of the service- degenerative disc disease or cannot be distinguished from being caused or aggravated by the service-connected degenerative disc disease. (continued on the next page) 3. Thereafter, readjudicate the claim by considering whether a higher rating may be obtained by combining the ratings for the orthopedic and neurologic manifestations of IVDS under 38 C.F.R. § 4.25. If any benefit sought on appeal remains denied, furnish the Veteran and her representative a supplemental statement of the case and an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Patrick C. Brady, 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.