Citation Nr: 18152270 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 12-15 487 DATE: November 21, 2018 REMANDED Entitlement to a rating in excess of 20 percent for a lumbar spine disability is remanded. Entitlement to a total disability rating based on individual unemployability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Air Force from August 1976 to August 1980 and from January 1986 to September 2003. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board remanded the claims on appeal in December 2017 for additional development. The Board’s remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a rating in excess of 20 percent for a lumbar spine disability is remanded. The Veteran seeks a rating in excess of 20 percent for his lumbar spine disability. In December 2017, the Board remanded the claim for a new examination to assess the current severity of the Veteran’s lumbar spine disability. While the Board regrets further delay, a remand for a new examination to address the Correia and Sharp standards is required. 38 C.F.R. § 4.2. The Veteran’s lumbar spine disability was most recently examined during a VA examination in March 2018. During that examination, the Veteran reported flare-ups, but the examiner reported that additional functional loss in terms of loss of range of motion could not be provided without resorting to mere speculation essentially because the Veteran was not being seen at the time of a flare-up. The examiner also reported that she could say without resorting to mere speculation whether pain, weakness, fatigability, or incoordination causes additional functional impairment on repeated use over time essentially because the Veteran was not being examined after repetitive use. In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the United States Court of Appeals for Veterans Claims (Court) addressed the adequacy of “mere speculation” opinions. The Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion. Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of veterans. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. Further, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. Thirty-eight C.F.R. § 4.59 (2017) states that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” As such, pursuant to Correia, an adequate VA joints examination must, wherever possible, include range of motion testing on active and passive motion and in weight-bearing and nonweight-bearing conditions. While the examination report indicates that testing did not reveal any pain on active and/or passive motion, and in weight-bearing and/or nonweight-bearing conditions, the examiner did not provide the specific range of motion findings under all of those conditions. For these reasons, a new examination and opinion is required. 2. Entitlement to a TDIU is remanded. The Veteran has asserted unemployability due to his service-connected disabilities, particularly his service-connected lumbar spine disability. As the claim for a higher rating for his lumbar spine disability is being remanded for further development, and its disposition may affect the determination of the claim for a TDIU, the Board finds the issues to be inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, adjudication of the claim for a TDIU is deferred. The matters are REMANDED for the following action: Schedule the Veteran for an examination to determine the current severity of his service-connected lumbar spine disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, or is not medically appropriate, in this case; he or she should clearly explain why that is so. The examiner should also express an opinion as to whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. If the Veteran is not being observed after repetitive use or during a flare-up, the examiner must still estimate any additional functional loss during flare-ups or on repeated use, based on the Veteran’s description of his flares’ severity, frequency, duration, and/or functional loss manifestations. Finally, to the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar spine disability alone and discuss the effect of the Veteran’s lumbar spine disability on occupational functioning. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mortimer, Associate Counsel