Citation Nr: 18149184 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 15-13 445 DATE: November 9, 2018 REMANDED Entitlement to an initial evalaution in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1969 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision issued by the Department of Veterans Affairs (DVA) Regional Office (RO). This matter was previously before the Board in June 2018, at which time the Board remanded the case in order to obtain another VA examination of the Veteran’s lumbar spine disability; such was accomplished in August 2018. The examiner noted that the August 2018 examination was not conducted during a flare-up. The examiner noted the Veteran’s report of severity, frequency, and duration of flare-ups as well as precipitating and alleviating factors. The examiner indicated that the Veteran’s flare-ups moderately affected function but determined that pain, weakness, fatiguability, or incoordination did not significantly limit functional ability during flare-ups, without providing any rationale for that conclusion. Moreover, it does not appear that the examiner contemplated the Veteran’s statements regarding functional impairment during flare-ups as noted in a March 2017 correspondence. The United States Court of Appeals for Veterans Claims (Court) held in Sharp v. Shulkin, 29 Vet. App. 26 (2017), that, pursuant to VA regulations and the VA Clinician’s Guide, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare-ups and, if so, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.” Id. at 32. The Court further explained that, in the event an examination is not conducted during a flare-up, the “critical question” in assessing the adequacy of the examination was “whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares.” Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). Consequently, the Board finds that the examiner did not adequately address the Veteran’s functional loss during flare-ups. Although the examiner noted the Veteran’s report of severity, frequency, and duration of flare-ups as well as precipitating and alleviating factors, no estimation was provided regarding loss of motion during flares. The examiner reported that the Veteran’s flares affected function moderately but provided no additional explanation as to functional impairment. The examiner failed to provide range of motion measurements, including at what point in the arc of motion pain limits function during any flare-ups. The examination also failed to consider a lay statement by the Veteran about the severity of his flare-ups as detailed below. Finally, the examiner does not appear to address the Veteran’s March 2017 lay statement, particularly as to his functional limitation during flare-ups, in the August 2018 examination report. In light of the above deficiencies, the Board finds that a remand is necessary in order to obtain another VA examination that adequately addresses the current severity of the Veteran’s lumbar spine disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (a VA examination must be based on an accurate factual premise); see also Stegall v. West, 11 Vet. App. 268 (1998) (A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). On remand, the Board also finds that any outstanding VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran “sufficiently identifies” other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information); Bell v. Derwinski, 2 Vet. App. 611 (1992). Accordingly, the matter is REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the Syracuse VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 2. Ensure that the Veteran is scheduled for a VA examination to determine the current severity of his lumbar spine disability. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must be performed where possible. The lumbar spine should be tested for pain in both active and passive motion, in weightbearing and non-weightbearing. 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. The examiner is further reminded that should any additional functional impairment be noted during flare-up, repeated use, or due to pain, lack of endurance, incoordination, etc., the examiner should attempt, to the best of his/her ability, to estimate the additional functional loss in degrees. If additional functional loss cannot be estimated, the examiner must provide an explanation for the inability to provide such an estimation. An explanation that the flare-up was not observed, standing alone, is not adequate. The examiner must also, in addition to obtaining description of the functional impairment during flare-up during the examination, review and discuss the March 2017 statement submitted by the Veteran in conjunction with providing an estimation of additional functional impairment during flare-ups. All opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Ruddy, Associate Counsel