Citation Nr: 21041631 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-59 624 DATE: July 9, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for lumbosacral disc disease is remanded. Entitlement to an initial rating in excess of 20 percent for right shoulder traumatic bursitis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from December 1967 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision letter issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to an initial rating in excess of 20 percent for lumbosacral disc disease is remanded. 2. Entitlement to an initial rating in excess of 20 percent for right shoulder traumatic bursitis is remanded. The matter was last remanded by the Board in September 2019 to review and/or obtain medical records from the Social Security Administration (SSA), the Florida Department of Corrections (DOC) treatment records and to obtain new VA examinations. Pertinent to the time period on appeal, the Board notes that the record reflects that the Veteran was in Florida confinement previously from December 21, 1989 to November 1, 2011 and from July 25, 2012 to June 5, 2019. Here, the Board finds that remand is warranted as explained below. First, the RO failed to document all requests and all responses to obtain Florida DOC treatment records as directed by the Board in the September 2019 remand. Although the record of evidence contains Florida DOC treatment records from January 2012 to May 2019, with the latest treatment records having been received on the same day of the September 2019 Board remand, the Board notes that the remand directed the RO to obtain all outstanding treatment records from the Florida DOC and document all requests and all responses in the claims file. However, while a copy of a July 2019 request for records is attached to the Florida DOC treatment records received in September 2019, such request specifically requested records from January 1, 1989 to December 31, 2012. Hence, the record lacks the DOC medical records dated prior to January 2012 and since May 2019. Moreover, the record fails to demonstrate that the RO conducted any further action to document all requests and all responses after the Board remand to determine whether the May 2019 record is the latest record available. To afford the Veteran full consideration of the benefits sought on appeal, remand is appropriate to ensure a complete record is available. Thus, the Board finds that the RO is not in substantial compliance with the September 2019 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Second, the Board notes that the remand directed that VA examinations be conducted to assess the severity level of the Veteran's disabilities. The Veteran underwent VA examinations in April 2013, September 2019 and last in December 2019. The Veteran has reported flare-ups in all his examinations. However, the April 2013 examination does not describe the flare-ups in terms of range of motion (ROM). The April 2013 examiner additionally found that the Veteran had IVDS of the thoracolumbar spine, however the September and December 2019 examiners did not make such a finding. Additionally, results of the September 2019 and December 2019 VA back and shoulder examinations reveal that the Veteran reported pain with flare-ups and with repeated use over a period of time. Further ROM testing was performed initially, on flare-ups and on repeated use on active motion. However, in the December 2019 back examination, although the examiner noted being unable to test in the thoracolumbar spine due to risk of injury to Veteran, the examiner did not report whether there was evidence of pain on passive ROM testing or when the joint is used in non-weight bearing, nor describe such in terms of ROM. Similarly, for the shoulder examination, although the examiner reported there was pain with passive ROM, weight bearing and nonweight bearing, the examiner did not describe such in terms of ROM. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of ROM testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." Hence, remand is warranted so that the VA examiner may report whether ROM measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing can be estimated, to include for prior VA examinations and the entire time period on appeal. The matters are REMANDED for the following action: 1. Obtain all outstanding treatment records for the Veteran from the VA and from the Florida DOC. Document all requests and all responses in the claims file. If the requested records are unavailable, the Veteran and his representative should be notified. 38 C.F.R. § 3.159. 2. After the above development is complete, schedule the Veteran for examinations with an appropriate clinician(s) to assess the severity level of his lumbosacral disc disease and right shoulder traumatic bursitis. The examiner(s) is asked to assess the severity level of the Veteran's lumbosacral disc disease and right shoulder traumatic bursitis: A) In compliance with the Court in Correia, the examiner must test for pain and record the range of motion for the lumbosacral disc disease and right shoulder traumatic bursitis in active motion, passive motion, weight-bearing, and nonweight-bearing conditions and, if possible, with the range of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, or is not medically appropriate, then the examiner should provide a clear explanation as to why the testing was not conducted. B) The examiner must also express an opinion as to whether there would be additional functional impairment on repeated use over time 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 possible. If the Veteran indicates that he is not currently experiencing a flare-up at the time of the examination, the examiner should still estimate any additional functional loss during flare-ups or on repeated use, based on the Veteran's description of his flares' severity, frequency, duration, and/or functional loss manifestations. C) The examiner should provide a retrospective opinion as to the estimated range of motion measurements for active motion, passive motion, weight-bearing, and/or nonweight-bearing for the prior VA examinations conducted during the appeal period. If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, they should clearly explain so in the report. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017). A complete rationale for all opinions is required. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Alli, 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.