Citation Nr: 22014429 Decision Date: 03/12/22 Archive Date: 03/12/22 DOCKET NO. 14-02 876 DATE: March 12, 2022 REMANDED Entitlement to a disability rating in excess of 20 percent for lumbar strain is remanded. REASONS FOR REMAND The Veteran had active service in the United States Marine Corps from July 2001 to November 2004. This matter come before the Board of Veterans' Appeals (Board) on appeal from the March 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, continuing a 20 percent disability rating for the Veteran's lumbar strain. The appeal was previously before the Board in September 2017 and March 2019, at which time it was remanded for further development. In an August 2020 decision, the Board denied the claim. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a September 2021 Joint Motion for Partial Remand (JMPR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the August 2020 decision as to the issue on appeal. The Court granted the JMPR in a September 2021 order. The matter is again before the Board for adjudication. 1. Entitlement to a disability rating in excess of 20 percent for lumbar strain is remanded. The Veteran seeks an increased rating for his service-connected his thoracolumbar disability. See VA Form 21-4138, December 2009. Specifically, he contends that his disability is more severe than reflected by his currently assigned disability rating. Following a review of the record, the Board finds that a remand is warranted for additional development. Specifically, as noted in the September 2021 JMPR, the Board previously remanded this claim in September 2017 for a VA medical examination and opinion that complies with the Court's holding in Correia v. McDonald, 28 Vet. App. 158 (2016) (holding that the final sentence of 38 C.F.R. § 4.59 requires that certain range of motion testing be conducted whenever possible in cases of joint disabilities). In response to the Board's remand, the AOJ obtained a November 2017 VA examination report. In reference to the Correia questions, the VA examiner opined that, "Passive ROM of the spine was not performed as it is not feasible to do this in a safe and reasonable manner" and "Non-weight bearing assessment is not applicable. There is no objective evidence of pain when the spine is in a non-weight bearing position at rest." Thereafter, in March 2019, the Board found that the November 2017 VA examination did not substantially comply with its September 2017 remand. The Board noted that applicability was not the correct legal basis for determining whether a required test, such as a non-weight bearing assessment, is necessary. For example, it is possible that a patient may have additional limitation of motion when bending to pick up a common object. A clear explanation was not provided, as required by the September 2017 Board Remand Directives. As a result, the Board requested a new VA examination and instructed the examiner to "test the ranges of motion for the thoracolumbar spine. Specifically, the examiner must test the range of motion in action motion, passive motion, weight-bearing, and non-weight bearing." Although the AOJ subsequently obtained a new VA medical examination and opinion in December 2019, the examiner's responses to the Correia questions were similar to those provided in the November 2017 VA examination report that the Board previously found were inadequate. See September 2021 JMPR. Accordingly, a remand is warranted for a new VA examination and opinion. The matters are REMANDED for the following action: 1. The AOJ should obtain all outstanding VA treatment records and any private treatment records identified by the Veteran. All obtained records should be associated with the evidentiary record. 2. After all outstanding treatment records have been associated with the claims file, schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his lower back disability. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. All testing deemed necessary to rate the lower back disability under the criteria of the VA rating schedule must be conducted and the results reported in detail. The examiner should elicit from the Veteran a complete history of any flare-ups of her lower back disability. In so doing, the examiner should inquire as to the frequency, duration, characteristics, severity, and functional loss during periods of flare-ups of the Veteran's lower back disability. The examiner should describe the additional loss in degrees or percentage. The examiner should comment as to the extent of any painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups, expressed as additional range of motion loss, if possible. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing, for the lower back. The examiner is also asked to provide a retrospective opinion as to the Veteran's passive motion for the entire appeal period. 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. In rendering the above requested opinion, the examiner should derive his or her estimate from relevant sources within the claims file, including private treatment records and lay statements of the Veteran. If the examiner is unable to do so, the examiner should indicate that all procurable data was considered (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. Any inability to provide any requested retrospective opinion should be thoroughly explained. (Continued on the next page) 3. If the benefit sought on appeal is not granted in full, issue a supplemental statement of the case (SSOC) to the Veteran and his representative and return the appeal to the Board, if otherwise in order. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Kaufer, 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.