Citation Nr: 1751031 Decision Date: 11/08/17 Archive Date: 11/17/17 DOCKET NO. 17-38 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Christine Clemons, Attorney at Law ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran had active military service from April 1955 to September 1955. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. Jurisdiction of the claim lies with the RO in New York, New York. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Veteran's representative stated in a July 2017 substantive appeal that his lumbar spine disability has worsened since his last VA examination in April 2015, thus necessitating a remand to provide him a new VA examination. See VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination); Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (holding that VA's statutory duty to assist includes a thorough and contemporaneous medical examination). In addition, the appellant asserts the April 2015 VA examiner did not sufficiently take into account symptomatology associated with flare-ups of his low back disability. In this regard, the VA examiner noted that the examination was not being conducted during a flare-up, and opined that the examination is medically consistent with the Veteran's statements describing functional loss during flare-ups. However, while the examiner reported that she was unable to determine whether pain, weakness, fatigability, or incoordination significantly limit functional ability during flare-ups without resort to mere speculation, no rationale was provided for this opinion. The United States Court of Appeals for Veterans Claims (Court) recently held that a VA examiner must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered, and it must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation, whether based on lack of expertise, insufficient information, or unprocured testing of the individual examiner. See Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017). As part of this obligation, a VA examiner should identify when specific facts cannot be determined. Id. Therefore, while the Board is permitted to accept a VA examiner's statement that he or she cannot offer an opinion without resorting to speculation, it may do so only after determining that this is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. Id. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. The Veteran should be afforded a VA spine examination to address the current severity of his lumbar spine disability. The examiner is to be provided access to the records in the VBMS and Virtual VA electronic files, and the examiner must specify in the report that these records have been reviewed. The examiner is to provide a detailed review of the Veteran's pertinent medical history current complaints and the nature and extent of any spine disability. The examiner must specifically address the additional functional limitation during periods of flare-up, if any. A complete rationale for any opinions expressed must be provided, including any determination that an opinion cannot be offered without resort to speculation. 2. The Veteran is hereby notified that it is his responsibility to report for the examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2016). In the event that the Veteran does not report for the aforementioned examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 3. After the development requested has been completed, the AOJ should review the examination report to ensure that it is in complete compliance with the directives of this REMAND. The AOJ must ensure that the examiner documented their consideration of the entire virtual file. If the report is deficient in any manner, the AOJ must implement corrective procedures at once. 4. After completing the above, and any other development deemed necessary, readjudicate the Veteran's appeal based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).