Citation Nr: 18151366 Decision Date: 11/20/18 Archive Date: 11/16/18 DOCKET NO. 16-43 693 DATE: November 20, 2018 REMANDED Whether the reduction from a 40 percent to 20 percent evaluation for lumbar spine degenerative joint disease (DJD) and degenerative disc disease (DDD), effective June 1, 2014, was proper, is remanded. Entitlement to an evaluation in excess of 20 percent for lumbar spine DJD and DDD is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from August 1974 to August 1978. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which reduced the Veteran’s evaluation from 40 percent to 20 percent for lumbar spine DJD and DDD, effective June 1, 2014. The Veteran appealed the propriety of the rating reduction and for a higher evaluation. 1. Whether the reduction from a 40 percent to 20 percent rating evaluation for lumbar spine DJD and DDD, effective June 1, 2014, was proper, is remanded. In the March 2014 rating decision, the RO decided to reduce the Veteran’s lumbar spine DJD and DDD evaluation from 40 percent to 20 percent based on the findings of an October 2013 VA examination. However, this examination report is inadequate for rating purposes, because it does not comply with the requirements of Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court determined that it was not sufficient for an examiner to provide that a requested opinion regarding whether the Veteran had additional functional loss during flare-ups or after repeated use over time of a musculoskeletal disability, pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995), was not possible without resorting to speculation based on the fact that the examination was not performed during a flare or after repetitive use. The Court found that an examiner must do all that reasonably should be done to become informed before concluding that a requested opinion cannot be provided without resorting to speculation. In this case, the October 2013 VA examiner found that as the Veteran was not having a flare-up at the time of the examination, it would be speculative to report additional range of motion loss and whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups, or when the joint is used repeatedly over a period of time. Based on the holding in Sharp and VA requirements in rating reductions, a remand is required to obtain a VA examination with retrospective findings of the Veteran’s lumbar spine DJD and DDD. 2. Entitlement to an evaluation in excess of 20 percent for lumbar spine DJD and DDD is remanded. In the Veteran’s March 2014 Notice of Disagreement, he disagreed with the propriety of the rating reduction for his lumbar spine DJD and DDD and sought a higher evaluation. He specifically asked for a 60 percent evaluation for his lumbar spine DJD and DDD. However, the RO only adjudicated and issued a statement of the case (SOC) regarding the propriety of the rating reduction. As there is no SOC or any other evidence of appeal action being taken for the increased evaluation issue, it must be remanded for the issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following actions: 1. Issue the Veteran an SOC, to include notification of the need to timely file a Substantive Appeal, regarding the issue of entitlement to a higher than 20 percent evaluation for lumbar spine DJD and DDD. The issue shall not be returned to the Board unless a sufficient substantive appeal is submitted. 2. Schedule the Veteran for an examination to determine the severity of his service-connected lumbar spine DJD and DDD by an appropriate clinician. To the extent possible, the examiner should provide findings regarding all symptoms associated with the service-connected lumbar spine DJD and DDD and should opine as to its severity. The examiner should ask the Veteran to describe the flare-ups he experiences and experienced at the time of the October 2013 VA examination, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his lumbar spine symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time, currently and at the time of the October 2013 VA examination. 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 comment on the extent of any functional impairment caused by the Veteran’s service-connected lumbar spine DJD and DDD, to include in an occupational setting and in performing ordinary, daily activities. All findings should be fully documented in the examination report. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Journet Shaw