Citation Nr: 18150199 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-07 066 DATE: November 14, 2018 REMANDED Entitlement to an initial rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine (L5-S1) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 1995 to December 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Entitlement to an initial rating in excess of 20 percent for DDD of the lumbar spine is remanded. The Veteran contends that he is entitled to a higher rating because his DDD of the lumbar spine and his associated symptoms are worse than currently contemplated by the assigned rating. The Veteran was afforded a VA spine examination in June 2008. During the VA examination, the Veteran reported that he experienced daily flare-ups. However, the VA examiner concluded that it was not possible to determine additional limitation of function due to flare-ups because it cannot be determined without resorting to mere speculation. The Veteran was afforded another VA spine examination in January 2015. The Veteran reported experiencing flare-ups 10-12 times per month and the VA examiner, once again, concluded that it was not possible to assess the limitations on functional ability or degree of functional loss experienced during flare-ups, without resorting to mere speculation. The Board notes that the United States Court of Appeals for Veterans Claims (Court) recently addressed the adequacy of a VA examiner's findings concerning additional functional loss during flare-ups of a musculoskeletal disability pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that VA examiners must estimate the functional loss that would occur during flare-ups. Specifically, VA examiners must name the precipitating and alleviating factors for the flare-ups and estimate, "per the veteran," the extent to which flare-ups affect functional impairment. Id. at 33. Thus, in light of the Court's holding in Sharp, the Board finds that the Veteran's claim must be remanded for a new VA examination and opinion addressing the limitation of motion during flare-ups, as the Veteran's most recent VA examinations did not address this issue. Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a VA medical examination with the appropriate medical professional to fully assess the severity of the Veteran's service-connected DDD of the lumbar spine. The VA examiner should review the claims file in its entirety. The VA examiner should report the extent of the DDD of the lumbar spine symptoms in accordance with VA rating criteria. Range of motion testing, in degrees, should be performed. In reporting the results of range of motion testing, the VA examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. The VA examiner should test the range of motion of the lumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing. If the VA examiner is unable to conduct the required testing, or concludes that the required testing is not necessary in this case, an explanation should be provided. The extent of any incoordination, weakened movement, and excess fatigability on repeated use should also be described by the VA examiner. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The VA examiner should opine (estimate) as to any resultant loss in range of motion that would occur during flare-ups, or explain why it is not feasible to render such an opinion. The VA examiner is advised that an opinion must be based on estimates derived from information procured from relevant sources, including the lay statements of the Veteran. VA's Clinician's Guide specifically advises VA examiners to try to procure information necessary to render an opinion regarding flare-ups from veterans. A full and complete explanatory rationale must be provided for any opinion(s) offered. If the VA examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, the VA examiner should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. 2. After ensuring compliance with the above, readjudicate the Veteran's claim. If the benefit sought on appeal remains denied, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Mahaffey, Associate Counsel