Citation Nr: 18144388
Decision Date: 10/25/18	Archive Date: 10/24/18

DOCKET NO. 10-16 396
DATE:	October 25, 2018
REMANDED
Entitlement to an evaluation in excess of 20 percent for lumbar disc disease with annular bulging is remanded.
REASONS FOR REMAND
The Veteran served on active duty from October 1989 to September 1999.
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a hearing in April 2014.  A transcript of that hearing is of record.  This matter was previously remanded by the Board for additional development in August 2014 and September 2016, and denied by a Board decision in June 2017.  The Veteran appealed the June 2017 denial to the United States Court of Appeals for Veterans Claims (Court).  In April 2018, the Court issued an order granting a Joint Motion for Remand (JMR).  The order served to vacate the June 2017 Board decision and remand of the appeal.
 
1. Entitlement to an evaluation in excess of 20 percent for lumbar disc disease with annular bulging is remanded.
The April 2018 JMR found that the examinations of record are not adequate because they do not comply with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017).  Specifically, the examiner did not adequately consider the Veteran’s lay statements or other treatment records when finding that he could not offer an opinion as to additional limitation without resort to speculation because he was not observing the Appellant during a flare-up.  Similarly, the examiner did not provide an adequate rationale regarding functional impairment following repetitive use over time because he had not observed the Veteran in that setting.  The JMR also found that the Board’s conclusion that noncompliance with Correia was not prejudicial was based upon unclear evidence or authority.  Upon remand, a new examination should be obtained that complies with the requirements of Sharp and Correia.  
The matter is REMANDED for the following action:
1. Schedule the Veteran for an examination of the current severity of his lumbar disc disease with annular bulging.  The examiner must test, and report in degrees, the Veteran’s range of motion of the lumbar spine on active motion, passive motion, and with pain, on weight-bearing and nonweight-bearing, and on repeated use. The examiner must elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  To the extent possible, the examiner should identify all symptoms and functional impairment due to the lumbar disc disease with annular bulging alone and discuss the effect of the Veteran’s lumbar disc disease with annular bulging on any occupational functioning and activities of daily living.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).  The examiner should consider whether a flare-up opinion can be provided based upon the Veteran’s competent lay statements.
2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal.  If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.
 
 U. R. POWELL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Budd, Counsel