Citation Nr: 18147465
Decision Date: 11/05/18	Archive Date: 11/05/18

DOCKET NO. 14-27 959A
DATE:	November 5, 2018
REMANDED
Entitlement to a rating in excess of 10 percent for degenerative joint disease of the thoracic spine prior to November 18, 2014, and in excess of 20 percent thereafter, is remanded.
REASONS FOR REMAND
The Veteran served on active duty in United States Air Force from March 2003 to March 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  In October 2017, the Veteran testified before the undersigned Veterans Law Judge.  In January 2018, the Board remanded the claim for further development. 
Unfortunately, another remand is necessary.  The July 2018 VA examiner found evidence of weight-bearing pain, but did not identify the location, severity and relationship of this pain to the Veteran’s condition.  In addition, the examiner was unable to provide an opinion without resorting to mere speculation on whether pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability with flare-ups and repetitive use over time in terms of additional loss of motion, as specifically requested by the Board, without providing an adequate rationale for that conclusion.  See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017).  In addition, the examiner indicated that the Veteran did not exhibit any radicular pain or any other signs or symptoms due to radiculopathy, but then provided contradictory remarks later on in the report as to how the Veteran informed her of intermittent radiculopathy symptoms in his low back, frequent to near constant shooting pain in his right lower extremity, intermittent tingling in his right leg and foot, rare numbness in the right foot toes, and a loss of strength comparison between his left and right extremities.  
Accordingly, the Board finds a new examination is necessary on remand.  See Stegall v. West, 11 Vet. App. 268 (1998).  Updated records should also be secured. 
The matter is REMANDED for the following action:
1. Obtain any outstanding VA treatment records. 
2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records.
3. Then schedule the Veteran for a VA examination with an examiner other than the July 2018 examiner to address the current severity of the Veteran’s thoracic spine disability, including any associated radiculopathy.  The entire claims file, including a copy of this remand and any newly obtained treatment records must be reviewed by the examiner. 
(a) The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing. 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. 

(b) Considering the Veteran’s reported history and October 2017 Board hearing testimony, please also provide an opinion describing functional impairment of the Veteran’s thoracic spine due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. Specifically, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

 
S. BUSH
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Victoria L. Stephens, Associate Counsel