Citation Nr: 21041692 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-35 477A DATE: July 9, 2021 REMANDED Entitlement to an initial disability rating in excess of 20 percent for a service-connected lumbar spine disability from June 19, 2014 to September 27, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1975 to February 1978. This appeal is before the Board of Veterans' Appeals (Board) from a September 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The procedural history of this claim is as follows: In September 2019, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge and a transcript of that hearing is associated with the claims file. In January 2020, the Board denied the Veteran's increased rating claim. However, the Veteran appealed the January 2020 Board decision to the U.S. Court of Appeals for Veteran's Claims (CAVC) and in March 2021 a Joint Motion for Partial Remand (JMPR) was issued after determining the January 2020 Board decision to be partially inadequate. Specifically, the Board relied on an inadequate June 2014 VA examination that did not comply with Correia v. McDonald, 28 Vet. App. 158, 165 (2016). For purposes of review, the Board will recite the pertinent evidence of record. A June 19, 2014 VA examination rated the Veteran's forward flexion at 55 degrees and extension at 25 degrees; there was no objective evidence of pain for either rating. His lateral flexion and rotation were measured at 25 degrees each bilaterally and there was no objective evidence of pain for any rating. His total range of motion was rated at 180 degrees. Repetitive-use testing revealed the same results. There was functional loss with less movement than usual and pain on movement. No IVDS or signs of radicular pain were objectively observed. The Veteran's daily life was impacted with "pain, stiffness, limited range of motion, difficulty with heavy lifting, bending, prolong sitting, standing, walking or climbing stairs." Specifically, the examiner remarked: There are contributing factors of pain, weakness, fatigability and/or incoordination and there is additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time. The degree of ROM loss during pain on use or flare-ups is approximately 10 degrees on flexion, extension, left and right lateral rotation of the claimant's back. There are contributing factors of pain and limited range of motion and there is additional limitation of functional ability of the back during flare-ups or repeated use over time. The degree of ROM loss during pain on use or flare-ups is approximately 10 degrees flexion, extension, lateral rotation of claimant's back. A December 2014 VA examination measured the Veteran's forward flexion at 45 degrees and extension at 30 degrees; there was no objective evidence of pain for either rating. Lateral flexion and rotation were measured at 30 degrees each bilaterally, there was no objective evidence of pain for any rating, and total range of motion was rated at 195 degrees. Repetitive-use testing revealed the same results. The examiner also determined the Veteran had functional loss with more movement than usual and pain on movement; and there was guarding and/or muscle spasms, but they did not result in an abnormal gait. He was also negative for IVDS and had signs of radicular pain. Specifically, the examiner remarked, "There are contributing factors of pain, weakness, fatigability and/or incoordination BUT NO additional limitation of functional ability of the thoracolumbar spine during flare-ups or repeated use over time." In March 2016, the Veteran submitted a statement confirming he has "constant pain to [his] back and knees." A June 2016 VA examination report measured the Veteran's range of motion as follows: forward flexion to 60 degrees with onset of pain at 55 degrees; extension was to 25 degrees with onset of pain at 20 degrees; lateral flexion was to 25 degrees, bilaterally, with onset of pain at 20 degrees; lateral rotation was to 25 degrees, bilaterally, with onset of pain at 20 degrees; and total range of motion was at 155 degrees. Upon repetitive-use testing forward flexion was to 50 degrees; extension was to 18 degrees; lateral flexion was to 18 degrees, bilaterally; and lateral rotation was rated to 18 degrees, bilaterally. His total range of motion was rated at 145 degrees. IVDS testing was positive with no incapacitating episodes; there was also guarding and/or muscle spasms, but they did not result in an abnormal gait. The examiner also determined the Veteran had functional loss with less movement than usual, interference with sitting and standing, and had signs of radicular pain. The Veteran reported use of a cane. In January 2020, the Board denied the Veteran's increased rating claim; however, in March 2021 a JMPR determined the January 2020 Board decision was partially inadequate as it relied on a June 2014 VA examination that did not comply with the standards set forth in Correia. Additionally, the JMPR ordered the following: The Board shall afford Appellant a VA examination that complies with Correia and in which the examiner addresses range of motion in both passive and active motion and in both weight bearing and non-weight bearing circumstances. Correia, 28 Vet. App. at 165. Accordingly, and in conjunction with the March 2021 JMPR, the Board must remand the Veteran's claim for a retrospective medical opinion as to the severity of the Veteran's lumbar spine disability from June 19, 2014 to September 27, 2019 that takes into consideration the criteria outlined in Correia. This matter is remanded for the following actions: 1. Forward the claims file to an appropriate clinician to assess the severity of the Veteran's service-connected lumbar spine disorder from June 19, 2014 to September 27, 2019. The record, including a complete copy of this remand order, should be made available for review in connection with the examination. Following a review of the record, the examiner should provide retrospective findings in regard to pain on range of motion testing and estimation of functional loss, per Correia. Note 1: In order to comply with the requirements, set forth in Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner MUST estimate the range of motion for the lumbar spine in active motion, passive motion, weight-bearing, non-weight-bearing, and also comment on the functional impairment caused by the Veteran's lumbar spine disability experienced by the Veteran at the time of the June 2014, December 2014, and June 2016 VA examinations. Note 2: If the examiner cannot provide all or some such retrospective opinions, the examiner must make clear that she has considered all relevant, procurable data, but that any member of the medical community at large could not provide such an opinion without resorting to speculation. In this circumstance, the examiner must clearly articulate why the issuance of such an opinion would be impossible without resorting to speculation. 2. After completing the above, and any other additional development deemed necessary, readjudicate the claim. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.