Citation Nr: 18153156 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-45 662 DATE: November 27, 2018 REMANDED Entitlement to an increased initial rating in excess of 10 percent for a low back disability is remanded. REASONS FOR REMAND The Veteran served in the United States Army from July 1970 to November 1970, from January 1980 to July 1984, from April 1985 to August 1985 and from November 1990 to September 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). When determining the severity of musculoskeletal disabilities, such as those at issue, VA must also consider the extent of any additional functional impairment above and beyond the limitation of motion objectively demonstrated due to the extent of pain/painful motion, limited or excess movement, weakness, incoordination, and premature/excess fatigability, etc., particularly during times when the symptoms flare up, such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. See DeLuca v. Brown, 8 Vet. App. 202 (1995), see also 38 C.F.R. §§ 4.40, 4.45, 4.59. In this case, the Veteran has received two VA examinations. In the June 2014 examination, the Veteran reported experiencing flare-ups related to his low back disability but the VA examiner failed to adequately consider the additional functional loss present during a flare-up. Additionally, the reasoning provided by the examiner for not offering an opinion on the additional range of motion loss is insufficient to support the validity of this part of the examination. Subsequently, in December 2015, the Veteran was provided with another VA examination for his low back disability. This examination also failed to satisfy the requirements related to evaluation of range of motion in consideration of flare-ups. The examiner cited having no contact with the Veteran during a flare-up as the reason for the inability to offer an opinion on additional range of motion loss. However, the examiner is not required to examine the Veteran during a flare-up in order to provide an opinion. The examiner may review the file along with statements from the Veteran to inform an opinion on symptoms during a flare-up. In this case, the examiner failed to solicit information from the Veteran that would allow for the examiner to opine on an estimate regarding the impact of flare-ups on the Veteran’s range of motion measurements. In addition to the inadequate VA examinations, in the Veteran’s Form 9, the Veteran indicates that he has undergone two surgeries for his low back disability, one in February 2015, the other in April 2016. As a result of these back surgeries, the Veteran now has spinal fusion with hardware, as demonstrated by the August 2016 x-rays. The Veteran also reported that he engages in physical therapy twice a week and requires assistive devices, a walker and a cane, as a result of his low back disability. The Veteran also endorses experiencing left leg numbness due to his condition. Therefore, the Board finds that the examinations of record failed to adequately address range of motion measurements in times of flare-up. Additionally, subsequent to the January 2016 VA examination, there have been significant changes in the status of the Veteran’s condition. For these reasons, the Board requires a new VA examination to re-evaluate the Veteran’s condition during the entire period on appeal. 38 C.F.R. § 3.327(a). The matter is REMANDED for the following actions: 1. Obtain any outstanding treatment records for the appeal period. 2. After associating any records with the claims file, arrange for the Veteran’s file to be forwarded to an appropriate medical professional for an in-person examination relating to the severity of the Veteran's low back disability, to include assessing for radiculopathy of the lower extremities. The examiner is to provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the back alone and discuss the effect of the Veteran's back on any occupational functioning and activities of daily living. (Continued on the next page)   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 must consider lay reports from the Veteran along with pertinent medical evidence, including medical literature submitted by him. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Watkins, Law Clerk