Citation Nr: 21042156 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 15-27 079 DATE: July 12, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for lower back strain with degenerative disc disease (DDD) is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1976 to June 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The matter was previously before the Board in February 2019 and September 2019 wherein the Board remanded for a VA examination. The matter has returned to the Board for adjudication. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The Veteran assert that he is entitled to a rating higher than the currently assigned 10 percent for his service-connected low back condition. The February 2019 Board decision remanded the issue for a new VA examination as the Veteran had reported that he had pain that radiated into his bilateral hips. The Board noted that VA treatment records from July 2015 and May 2016 documented complaints of radiating pain into his right leg. The July 2015 VA treatment record also showed an assessment of back pain with radicular signs. The Veteran was examined in May 2017, but the Veteran did not have any radicular symptoms associated with his back disability, even though he had reported pain radiating into his hips at the examination. The February 2019 Board decision instructed the RO to obtain a VA examination that included range of motion testing of the joint in active motion, passive motion, weightbearing and non-weightbearing. Additionally, the Board instructed the examiner to identify and comment on the frequency or extent of all neurological symptoms associated with the service-connected lower back disability. The matter was before the Board again in September 2019. The Board found that the although the Veteran underwent a new VA examination in May 2019, it did not resolve the confusion as to the severity of the Veteran's radicular symptoms. The Board explained that the examiner had noted that the Veteran experienced moderate intermittent pain in his left lower extremity and moderate paresthesias and numbness in his right lower extremity. The examiner also noted that the nerve roots involved were the L4, L5, S1, S1, and S3 in both sides. However, the examiner characterized the severity of the Veteran's radiculopathy as only "mild" in both sides and the examiner did not provide any explanation for this conflicting characterization or any additional clarifying details regarding the Veteran's radicular symptoms. The Board remanded the issue to obtain a new VA examination that resolves this apparent contradiction. In October 2019, the Veteran was afforded another VA spine examination. The Board notes that the United States Court of Appeals for Veterans Claims (Court) issued a decision which mandated new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the low back as in this case) in order to satisfy judicial review in increased rating claims. See Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weightbearing and non-weightbearing. Id.; see also 38 C.F.R. § 4.59. Unfortunately, review of the record evidence shows that none of the Veteran's VA examinations for his back condition comply with Correia. For example, there is no indication in the most recent back examination in October 2019 whether the range of motion obtained at the examinations are in active motion, passive motion, weightbearing, and non-weightbearing. The examiner indicated that it was not medically appropriate when asked if there was evidence of pain when the joint is used in non-weightbearing. Furthermore, regarding the Veteran's radicular symptoms, the VA examiner found that there was no radicular pain or any other signs or symptoms due to radiculopathy. However, it was noted in the VA examination report that he was seen in August 2019 for chronic back pain radiating to his left leg. A VA treatment record from August 2019 confirms that the Veteran was seen at the VA emergency department for back pain and pain radiating down his left lower extremity. The VA examiner indicated that the EMG study was completed, and the full report can be found on Vista Imaging/CPRS KCVA file. The EMG study indicated that bilateral peroneal and tibial motor NCS's were normal as well as bilateral sural SNAP's were normal. Needle EMG was limited due to some reduced effort secondary to needle pain. From the NCS's and muscles tested there is no electrodiagnostic evidence of a lumbar radiculopathy or neuropathy. Due to difficulty of the study the small fiber neuropathies was not tested- AKA diabetes, vascular, ETHO. The Board notes that upon review of the record, the October 25, 2019 EMG study is not associated with the Veteran's claim file. As previously noted, the February 2019 Board remand instructions specifically requested that the examiner include the Veteran's range of motion in active motive, passive motion, weightbearing, and non-weightbearing. The VA examiner did not comply with the requirements as noted in Correia. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). As such, the VA examinations pertaining to the Veteran's lower back condition may be inadequate. Thus, at present, none of the medical evidence of record may fully satisfy the requirements of Correia and 38 C.F.R. § 4.59. Additionally, on remand, clarification regarding the Veteran's radicular symptoms is needed and to obtain the October 25, 2019 EMG study. The matters are REMANDED for the following action: 1. Obtain VA treatment records from September 2019 to present. All reasonable attempts should be made to obtain any identified records. 2. Obtain the October 25, 2019 EMG study conducted at the Kansas City VA Medical Center and associate it with the Veteran's claim file. 3. After completion of the above, schedule the Veteran for a VA examination to assess the severity of the service-connected lumbar spine disability any radicular symptoms associated with the lower back condition. The record, including a copy of this remand, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. Specifically, the Veteran's lumbar spine should be tested for pain in both weightbearing and non-weightbearing positions, and on both active and passive motion. If this cannot be performed, the examiner should explain why. The examiner should record the range of motion of the joints observed on clinical evaluation in terms of degrees. The examination must include testing results of both active and passive motion, and in weightbearing and non-weightbearing. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If the Veteran reports flare-ups, the examiner should ask him to report or demonstrate his range of motion during the flare-ups. The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The VA 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 the VA examiner is unable to report the degree of additional range of motion loss during repeated use or a flare-up, the VA examiner must explain why it is not feasible to render such an opinion. In other words, the VA examiner should opine as to any resultant loss in range of motion that would occur during on repeated use or flare-ups or explain why it is not feasible to render such an opinion. If the Veteran endorses experiencing them, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion on repeated use or flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. Finally, the examiner is also asked to provide a retrospective opinion concerning the functional loss and severity of the Veteran's thoracolumbar spine disability, beginning from September 2011 (i.e., one year prior to the Veteran's increased rating claim received in September 2012). To this end, the examiner should provide a retrospective opinion addressing the VA examinations from January 2013, October 2017, May 2019, and October 2019 and the extent of the Veteran's functional loss during flare-ups and on repeated use. The examiner is asked to determine whether the Veteran's range of motion results from the January 2013, October 2017, May 2019, and October 2019 VA examinations would have been reduced if tested in both active and passive motion and in weightbearing and non-weightbearing and estimated degree of additional range of motion loss due to repeated use over time and flare-ups. To the examiner's best ability, the additional range of motion lost should be described in degrees based on the information noted in the VA examinations, pertinent lay statements, VA treatment records, and private treatment records in the Veteran's claim file. If providing any retrospective opinions is not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. The examiner must also specifically consider and comment on the severity of the Veteran's radicular symptoms and provide a clear and consistent opinion on the severity of such symptoms. If there are no reported signs or symptoms of radiculopathy, the examiner MUST reconcile this finding with the Veteran's chronic complaints of bilateral lower radiculopathy. The examiner must consider and discuss the July 2015 VA treatment record documenting complaints of radiating pain into the right leg and an assessment of back pain with radicular signs, the May 2016 VA treatment record documenting complaint of radiating pain into the right leg, the Veteran's testimony from the May 2017 VA examination that he had pain radiating into his hips, and an August 2019 VA emergency department record indicating pain radiating down his left lower extremity which is chronic as well. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiners should provide a fully reasoned explanation. All opinions expressed should be accompanied by supporting rationale. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.