Citation Nr: 18153048 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 10-26 271 DATE: November 27, 2018 REMANDED Entitlement to an initial rating greater than 10 percent for degenerative disc disease (DDD) and degenerative joint disease (DJD) of the lumbosacral spine prior to November 9, 2015, and in excess of 20 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1974 to January 1977. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, in a November 2015 rating decision, the AOJ increased the Veteran’s lumbar spine disability to 20 percent disabling, effective November 9, 2015. The Board has recharacterized the issue as above in order to comport with that award of benefits. This case was last before the Board in June 2017, at which time the Board denied an evaluation in excess of 10 percent for the lumbar spine disability for the period prior to November 9, 2015, and denied an evaluation in excess of 20 percent for the period thereafter. The Veteran timely appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the parties jointly agreed to vacate the June 2017 Board decision and to remand the lumbar spine issue to the Board for further development. The case has been returned to the Board at this time in compliance with the May 2018 Joint Motion for Remand and Court order. In the Joint Motion for Remand, the parties indicated that the Board erred in failing to ensure compliance with VA’s duty to assist by affording the appellant an adequate examination. Specifically, the parties agreed that the November 2015 VA examination was found inadequate because it did not comply with the Court’s holding in Sharp v. Shulkin. 29 Vet. App. 26 (2017). In that case, the Court provided guidance on how examiners should conduct examinations for increased ratings for musculoskeletal disabilities, and found that VA examiners must address the effects of flare-ups and repeated use over time in degrees of range of motion lost. Sharp, 29 Vet. App. at 34-36. Accordingly, as the Court has found the November 2015 VA examination inadequate, the Board finds that remand is necessary in this claim to provide the appellant with an examination consistent with the Court’s holding in Sharp. A remand at this time is necessary in order for such to be accomplished. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). 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); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain any and all VA treatment records not already associated with the claims file from the Durham 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. All opinions must be accompanied by a clear rationale. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kleponis, Associate Counsel