Citation Nr: 1756727 Decision Date: 12/07/17 Archive Date: 12/15/17 DOCKET NO. 10-21 354 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a disability rating greater than 20 percent for degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.R. Bryant INTRODUCTION The Veteran had active service in the U.S. Air Force from June 1971 to June 1995. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In October 2012, the Veteran testified at a Board hearing. A transcript of the testimony has been associated with the claims file. In May 2014 the Board remanded the appeal for additional development. The Board notes that in the May 2014 Remand, it assumed jurisdiction of a claim for entitlement to a total rating by reason of individual unemployability due to service-connected disabilities (TDIU). This claim was raised by the Veteran at his October 2012 hearing, in a November 2013 letter, and in a July 2014 statement. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, in January 2015, the Veteran informed VA that he did not want to pursue the TDIU claim. The Board also notes that in January 2016, the Veteran submitted a notice of disagreement with respect to an April 2015 rating decision which assigned certain ratings to the Veteran's service-connected radiculopathy of the left and right lower extremities. The record reflects that the RO has acknowledged the notice of disagreement and is undertaking action on the notice of disagreement. The Board consequently will not take further action on those matters at this time. In June 2016, the Board denied an increased rating for degenerative disc of the lumbar spine. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2017, order, the Court granted a Joint Motion for Remand (JMR) vacating that decision and remanding it to the Board. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted in the Introduction, the Court granted a JMR in which the Veteran and the VA Secretary (the parties) agreed that a remand was warranted because the Board provided an inadequate statement of reasons or bases in denying a higher rating for lumbar disc disease, specifically with regard to the functional loss experienced by the Veteran during pain flare-ups. The parties referred to VA examination reports from June 2009, March 2010, February 2012, and July 2014, noting that although each examination report indicated the Veteran experienced flare-ups, none of them recorded additional loss of range of motion during these flare-ups. Specifically, they noted that at the 2009 examination the Veteran reported flare-ups that occurred every three to four days, lasting eight hours or more. At the March 2010 and February 2012 examinations, he reported that the intensity of his pain flare-ups was 10/10 on the pain scale and that the functional impact of his flares was that he could not walk or perform his job at work. The parties also noted that during the most recent examination in July 2014, the Veteran reported constant daily flare-ups that lasted all day. The VA examiner indicated that while pain significantly limits functional ability during flare-ups, it was not feasible to describe the additional loss of range of motion because the Veteran was not having a flare-up on the date of the examination. The parties agreed that as a result it was unclear whether the examiner could have considered other medical evidence of record, such as lay statements, and/or patient interviews to arrive at such a conclusion, and if so, why he did not do so. It was also unclear whether, given the reported frequency of the Veteran's flare-ups, it would be possible to make arrangements to assess the Veteran's range of motion during a flare-up. The Board acknowledges that the 2014 VA examiner could not describe any significant additional limitations of functional ability during flare-ups or after repetitive because the Veteran was not being examined while a flare-up was taking place. In fact, this is a medical rationale recently deemed inadequate by the Court in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In addition, the Court held, in Correia v. McDonald, 28 Vet. App. 158, 168-70 (2016), 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. The remaining VA examination reports of record addressing the lumbar disc disease during the appeal period are also inadequate, inasmuch as they do not adequately address flare-ups and did not provide the additional range of motion measurements. Based on the foregoing, and consistent with the Court's July 2017 Order, the Board finds that this matter should be remanded, and that the Veteran should be afforded another VA examination that fully satisfies the requirements of Sharp and Correia. The examiner should also, to the extent possible, provide a retrospective medical opinion for the other VA examinations conducted during the appeal period. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). Accordingly, the case is REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, obtain any outstanding VA treatment records that are not already associated with the claims file. 2. Schedule the Veteran for an appropriate VA examination to determine the current severity of his service-connected lumbar disc disease, to include specific findings regarding pain on range of motion testing and an estimation of functional loss, per Correia and Sharp. The electronic claims file must be made accessible to the examiner for review. The examiner must complete the appropriate Disability Benefits Questionnaire (DBQ). The examiner should elicit the Veteran's subjective complaints (including flare-ups), report all clinical findings in detail, and reconcile the subjective complaints with the objective findings, commenting on the resulting functional impairment. If the examination is not conducted during a flare-up, the functional impact of a flare-up should be estimated based on the Veteran's reports. If this cannot be done, the examiner should explain why. After reviewing the Veteran's claims file and eliciting the history of the Veteran's lumbar disc disease, to specifically include any symptoms and functional impact that he experiences during flare-ups, the examiner should conduct a relevant clinical examination including range of motion testing of the lumbar spine. The examiner must measure and report both active and passive range of motion of the spine, in both weight-bearing and nonweight-bearing positions. If the required testing cannot be performed, the examiner should clearly explain why. The examiner should also discuss the additional functional impairment that occurs during flare-ups, including any additional loss of motion in degrees. In assessing functional loss the examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. If the examination is not conducted during a flare-up, the functional impact of a flare-up should be estimated based on the Veteran's reports. If this cannot be done, the examiner should clearly explain why. Further, the VA examiner should provide an opinion as to the functional impact of flare-ups that can be estimated for the other VA examinations conducted during the appeal period. See, e.g., June 2009, March 2010, February 2012 and July 2014 VA examination reports. If the examiner is unable to provide a retrospective opinion as to functional impact of a flare-ups throughout the appeal period, he or she should clearly explain why. 3. After the above actions are completed, if the decision is adverse to the Veteran, issue a supplement statement of the case and allow the appropriate time for response. Then, return the case to the Board. The Veteran 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 or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2014). _________________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board is appealable to the Court. 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).