Citation Nr: 18153188 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 12-22 721 DATE: November 27, 2018 REMANDED Entitlement to a rating in excess of 20 percent for degenerative disc disease and degenerative changes of the thoracolumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1971 to January 2006. In an August 2017 decision, the Board of Veterans’ Appeals (Board), in pertinent part, denied a rating in excess of 20 percent for the Veteran’s thoracolumbar spine disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) and the Court issued an Order in May 2018 that granted an Amended Joint Motion for Partial Remand (AJMPR), remanding the claim to the Board for further action. 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease and degenerative changes of the thoracolumbar spine is remanded. Upon review of the AJMPR and other evidence of record, the Board finds remand is warranted to ensure compliance with the Court’s decision in Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). The Veteran was thrice examined by VA clinicians for this claim. See May 2010, February 2013 and March 2016 VA examination reports. At all three examinations, the Veteran reported flare-ups of his thoracolumbar spine disability. During the March 2016 examination, the Veteran reported flare-ups that limit his ability to lift and walk. The examiner did not describe range of motion (ROM) limitation related to flare-ups, because “[a]ny limitation of ROM cannot be estimated”. The examiner did not explain why this was so. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the U.S. Court of Appeals for Veterans Claims (Court) discussed a similar rationale and found it to be inadequate. In this regard, the Court stated that “[b]ecause the VA examiner did not... estimate the veteran’s functional loss due to flares based on all the evidence of record—including the veteran’s lay information—or explain why she could not do so, the... examination was inadequate.” Sharp, 29 Vet. App. at 36 (emphasis added). The Court in Sharp reiterated that the Board can accept an examiner’s statement that an opinion cannot be provided without resorting to speculation, but “it must be clear that this is predicated on a lack of knowledge among the ‘medical community at large’ and not the insufficient knowledge of the specific examiner.” Sharp, 29 Vet. App. at 36 (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). The examiner did not provide sufficient information for the Board to draw such a conclusion. Additionally, all three VA examinations do not comply with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016). In pertinent part, the Court held that to be adequate, a VA examination of joints must, wherever possible, include testing that permits an adjudicator to assess the effect of painful motion. Such an examination should include range of motion tests for both active and passive motion, and in weight-bearing and non-weight-bearing circumstances in compliance with 38 C.F.R. § 4.59. See Correia, 28 Vet. App. at 165, 169-70. In light of the above, a remand is warranted for additional examination and opinions. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination of the current severity of his thoracolumbar spine disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing (assuming such can be accomplished). To the extent that some testing cannot be accomplished, the examiner should provide the reason. 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. 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 the reason.   The examiner should provide similar retrospective estimate opinions about the degree of limitation on motion during flare-ups at the time of the Veteran’s prior VA spine examinations. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel