Citation Nr: 18151196 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 10-29 463 DATE: November 16, 2018 REMANDED Entitlement to an increased rating for lumbar spondylosis in excess of 20 percent is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1978 to May 1979. The Veteran appealed a June 2017 decision of the Board of Veterans’ Appeals (Board) to the United States Court of Appeals for Veterans Claims (Court) to the extent that the Board denied an increased rating for a service-connected lumbar spine disability. Pursuant to a Joint Motion for Remand (JMR), the Court, in a May 2018 Order, vacated the Board’s June 2017 decision (as to the matter of entitlement to an increased rating for lumbar spondylosis in excess of 20 percent) and remanded the matter to the Board to ensure that adequate VA examinations are provided to the Veteran. The JMR indicated that the March 2017 VA examination was inadequate for rating purposes as the examiner failed to address whether the Veteran had additional functional loss or limitation of motion during flare-ups as a result of pain. See Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Furthermore, the Court in Mitchell v. Shinseki explained that functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. 25 Vet. App. 32 (2011). Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Id. Therefore, the AOJ should afford the Veteran a new VA examination of his lumbar spine that addresses the Veteran’s additional functional loss due to pain during flare-ups. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of the Veteran’s lumbar spine disability (lumbar spondylosis). The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. Please review the May 2018 JMR. The examiner should obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups from the Veteran himself. The examiner should elicit relevant information as to the Veteran’s flares with a description of the additional functional loss, if any, the Veteran has during flares. The examiner should estimate the Veteran’s functional loss due to flares based on all the evidence of record-including the lay information or sufficiently explain why the examiner cannot do so. (a.) Taking into account the evidence in the claims file and the Veteran’s lay statements, the examiner must determine the current severity of the Veteran’s lumbar spine disability, and any impairment on activities of daily living and capacity for occupational activities. (b.) The examiner is directed to test the range of motion in active motion, passive motion, weight-bearing, and nonweight-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. The examiner should also, in accordance with DeLuca v. Brown, 8 Vet. App. 202 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32 (2011) indicate whether the Veteran’s lumbar spine disability is productive of any functional loss in the form of weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and provide an opinion as to how these factors result in any additional limitation of motion or additional functional loss. In doing so the examiner must address any increased functional loss during flare-ups. Additionally, if feasible, the examiner should describe any functional loss during flare-ups and otherwise in terms of additional loss of range of motion. If such range-of-motion testing is not included, the examiner should provide a clear explanation as to why. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If it is not possible to provide an opinion regarding symptoms 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). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Costello, Associate Counsel