Citation Nr: 21042158 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 18-26 684 DATE: July 12, 2021 REMANDED Entitlement to a disability rating greater than 10 percent prior to April 27, 2018, and greater than 20 percent thereafter, for degenerative disc disease of the lumbosacral spine is remanded. REASONS FOR REMAND The Veteran had active service from April 1999 to April 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. The Veteran appointed his current service representative to represent him before VA by filing a completed VA Form 21-22 at the RO in August 2014. The RO assigned a higher 20 percent rating effective April 27, 2018, for the Veteran's service-connected degenerative disc disease of the lumbosacral spine in a May 2018 rating decision. A virtual Board hearing was held in May 2021 before the undersigned Veterans Law Judge and a copy of the hearing transcript has been added to the record. The Veteran essentially contends that his service-connected degenerative disc disease of the lumbosacral spine is more disabling than currently evaluated. The Board acknowledges that he was examined for VA adjudication purposes in April 2018. Unfortunately, a review of this examination shows that it is inadequate for VA adjudication purposes. The April 2018 VA examiner stated that she could not provide information concerning whether there was pain on passive range of motion testing or pain when the lumbosacral spine is used in non-weight bearing because there was no contralateral joint for the lumbosacral spine. This is error which requires remand. In Correia, the United States Court of Appeals for Veterans Claims (Court) mandated new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the lumbosacral spine, as in this case) in order to satisfy judicial review in increased rating claims. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Court held in Correia that 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 weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Id.; see also 38 C.F.R. § 4.59. The April 2018 VA examination did not comply with Correia. There is no requirement in Correia that a contralateral joint must exist in order for a VA clinician to answer the questions regarding whether there is pain on passive motion or non-weight bearing as the VA examiner asserted in April 2018. Given the deficiencies in the April 2018 VA examination, the Board finds that it is inadequate for VA adjudication purposes. The Board also finds that, on remand, the Veteran should be scheduled for updated VA examination to determine the current nature and severity of his service-connected degenerative disc disease of the lumbosacral spine. See also Southall-Norman v. McDonald, 28 Vet. App. 346 (2016) (finding 38 C.F.R. § 4.59 not limited to diagnostic codes involving range of motion and extending Correia to disabilities involving painful joint or periarticular pathology). The RO also should attempt to obtain the Veteran's updated treatment records. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Schedule the Veteran for examination to determine the current nature and severity of his service-connected degenerative disc disease of the lumbosacral spine. If possible, this examination should be conducted by a clinician other than the clinician who conducted the April 2018 VA back (thoracolumbar spine) conditions Disability Benefits Questionnaire (DBQ). 3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.