Citation Nr: 18142951 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 07-30 917 DATE: October 17, 2018 REMANDED Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine, from May 12, 2012, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 2003 to April 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The December 2006 rating decision included the grant of entitlement to service connection for lumbar degenerative disc disease, and provided an initial noncompensable rating. A July 2009 rating decision provided a 10 percent rating, effective April 30, 2006 (the date of the Veteran’s claim). A May 2011 rating decision provided an increased rating of 20 percent, effective August 3, 2010. In a May 2015 decision, the Board found that the Veteran was entitled to a 10 percent rating prior to August 3, 2010 and a 20 percent rating from August 3, 2010 to May 11, 2012. The Board remanded the issue of a rating in excess of 20 percent from May 12, 2012 for an additional examination. That issue was again remanded in January 2017, and it remains on appeal before the Board. 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine, from May 12, 2012 is remanded. The claim was remanded in January 2017 to assess the current nature of the Veteran’s service connected back disability. Unfortunately, the Veteran’s January 2017 VA examination assessing the severity of his lumbar spine disability does not adequately assess functional limitations and loss of range of motion due to pain or during flare ups. The VA examiner noted that the Veteran reports flare-ups in his back. The examiner also indicated that the examination is neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during flare-ups. The examiner did not, however, express an opinion as to whether pain could significantly limit the Veteran’s functional ability- in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court noted that for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Furthermore, the Court stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans,” and the examiner’s determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Id. at 10. Such an estimation of additional functional limitation was not provided in the most recent examination. As the January 2017 examination report lacks this information, an addendum opinion which adequately considers functional loss and additional loss of range of motion due to pain on use or during flare ups is necessary. The matter is REMANDED for the following action: Return the claim file AND A COPY OF THIS REMAND to the January 2017 VA examiner for an addendum. If that examiner is unavailable, the file should be sent to another examiner. The need for a physical examination, or in-person interview, is left ot the discretion of the examiner conducting the file review. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner is asked to offer an estimate of the Veteran’s functional impairment after repetitive use and with flare ups in terms of the degrees of additional range of motion loss. This assessment should be based on: a) the evidence of record and/or or b) the Veteran’s lay descriptions of repeated use or flares’ severity, frequency, duration, and/or functional loss manifestations. If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. The examiner is advised that the inability to provide an opinion without resorting to speculation must be based on 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. All opinions expressed should be accompanied by supporting rationale. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel