Citation Nr: 18153694 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-55 436 DATE: November 28, 2018 REMANDED Entitlement to a rating in excess of 10 percent for degenerative arthritis of the lumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from April 1974 to September 1976. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an January 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. The Board notes that the Veteran was previously represented by Virginia A. Girard-Brady, Attorney. A representative may not withdraw her representation of a veteran more than 90 days after the certification of the appeal absent a showing of good cause on motion. 38 C.F.R. § 20.608 (b)(2). Here, Ms. Girard-Brady informed the Veteran of her intention to withdraw and filed the requisite motion in June 2018, indicating that the Veteran had terminated the attorney-client relationship in this matter. As such, the Board finds that good cause has been shown, the motion for withdrawal is granted, and the Veteran proceeds pro se. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the lumbar spine is remanded. The Veteran contends that he is entitled to a higher rating because his degenerative arthritis of the lumbar spine is worse than currently contemplated by the assigned rating. In August 2015, the Veteran reported an acute flare-up of his lower back pain at the Wichita VAMC. The Veteran was then afforded a VA examination for back conditions in November 2015, where he also reported flare-ups. The VA examination was not conducted during a flare-up, but the VA examiner stated that pain, weakness, fatigability, or incoordination does not significantly limit functional ability with flare-ups. The VA examiner did not estimate the functional loss that would occur during flare-ups, nor did she name the precipitating and alleviating factors for the flare-ups and estimate or specify the extent to which flare-ups affect functional impairment. In June 2017, the Veteran’s representative at the time stated that the Veteran’s degenerative arthritis of the lumber spine has increased in severity. See Green v. Derwinksi, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination). The Board notes that the United States Court of Appeals for Veterans Claims (Court) recently addressed the adequacy of an examiner's findings concerning additional functional loss during flare-ups of a musculoskeletal disability pursuant to DeLuca v. Brown, 8 Vet. App. 202 (1995). Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that examiners must estimate the functional loss that would occur during flare-ups. Specifically, examiners must name the precipitating and alleviating factors for the flare-ups and estimate, "per the veteran," the extent to which flare-ups affect functional impairment. Id. at 33. Thus, in light of the Court's holding in Sharp, the Board finds that the Veteran's claim must be remanded for a new examination and opinion addressing the limitation of motion during flare-ups. The matter is REMANDED for the following actions: 1. Schedule the Veteran for a VA medical examination with the appropriate medical professional to fully assess the severity of the Veteran's service-connected degenerative arthritis of the lumbar spine. The VA examiner should review the claims file in its entirety. (a) Range of motion testing, in degrees, should be performed. In reporting the results of range of motion testing, the VA examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. The VA examiner should test the range of motion of the lumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing. If the VA examiner is unable to conduct the required testing, or concludes that the required testing is not necessary in this case, an explanation should be provided. The extent of any incoordination, weakened movement, and excess fatigability on repeated use should also be described by the VA examiner. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The VA examiner should opine (estimate) as to any resultant loss in range of motion that would occur during flare-ups, or explain why it is not feasible to render such an opinion. The VA examiner is advised that an opinion must be based on estimates derived from information procured from relevant sources, including the lay statements of the Veteran. VA's Clinician's Guide specifically advises VA examiners to try to procure information necessary to render an opinion regarding flare-ups from veterans. (b) The examiner should also identify, and comment on the frequency or extent of, as appropriate, all neurological symptoms associated with the Veteran's low back disability. (c) The examiner should also indicate whether the Veteran has IVDS associated with his service connected low back disability and if so, render findings particularly responsive to the criteria for rating IVDS-specifically, comment as to the existence and frequency of any of the veteran's incapacitating episodes (i.e., a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician). The examiner should indicate whether, over the last 12-month period, the veteran's incapacitating episodes had a total duration of (a) at least two weeks but less than four weeks; (b) at least four weeks but less than six weeks; or (c) at least six weeks. A full and complete explanatory rationale must be provided for any opinion(s) offered. If the VA examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, the VA examiner should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Mahaffey, Associate Counsel