Citation Nr: 18153737 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 10-47 449 DATE: November 28, 2018 REMANDED Entitlement to a disability rating in excess of 10 percent for degenerative disc disease (DDD) of the lumbar spine with herniated disks at L4-5 and L5-S1 due to low back strain is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1986 to May 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in June 2013. A transcript of the hearing is of record. In June 2014, the Board granted the Veteran’s claims for service connection DDD of the lumbar spine with herniated disks at L4-5 and L5-S1 and for radiculopathy of the left lower extremity, and remanded the claim of a disability rating greater than 10 percent for service-connected low back strain. In a July 2014 rating decision, the RO combined the Veteran’s service-connected low back strain and was recharacterized as DDD of the lumbar spine with herniated disks at L4-5 and L5-S1 due to low back strain. In a November 2016 decision, the Board denied the Veteran’s claim for a disability rating in excess of 10 percent for degenerative disc disease (DDD) of the lumbar spine with herniated disks at L4-5 and L5-S1 due to low back strain. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2018 decision, the Court set aside the Board’s November 2016 decision, and remanded the matter for additional development and readjudication. Entitlement to a disability rating in excess of 10 percent for degenerative disc disease (DDD) of the lumbar spine with herniated disks at L4-5 and L5-S1 due to low back strain is remanded. As noted above, the Court vacated the Board’s November 2016 decision in a March 2018 decision. The basis for the Court’s decision was that the Board made its decision based on an inadequate August 2014 VA examination. Specifically, the Court noted that the November 2016 Board decision did not fully discuss functional loss or the applicability of 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca v. Brown, 8 Vet. App. 202 (1995), and Mitchell v. Shinseki, 25 Vet. App. 32 (2011) and the Court noted that a remand is warranted so that the Board may fully address the matter of functional loss in this case, and whether Veteran is entitled to an increased rating based thereupon. See Tucker v. West, 11 Vet. App. 369, 374 (1998). In the August 2014 VA examination the Veteran reported flare-ups. He said he had an increase in pain and stiffness if he bent for a prolonged period of time. He said there was no functional loss of range of motion at the time. Upon examination, the examiner stated that the Veteran did not have additional limitation in range of motion of the back following repetitive-use testing. The examiner noted functional loss shown by less movement than normal and pain on movement. The examiner marked the Mitchell criteria as not applicable. The Board finds this VA examination inadequate. On remand, an addendum opinion, and VA examination if necessary, should be obtained that addresses whether the Veteran experiences additional functional loss due to flare-ups and to quantify any loss, if possible. The matter is REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, forward the claims file and a copy of this remand to the August 2014 VA examiner, if available, or an appropriate substitute to determine the severity of the Veteran’s DDD of the lumbar spine with herniated disks at L4-5 and L5-S1 due to low back strain. After a review of the evidence, the examiner is asked to determine the following: (a) Provide an opinion whether, and to what extent, the Veteran experiences likely functional loss of his DDD of the lumbar spine with herniated disks at L4-5 and L5-S1 due to low back strain due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. (b) In the context of flare-ups, if one is not occurring at the time of the examination, it is requested that the examiner estimate any functional limitation in terms of the degree of additional loss of range of motion after eliciting appropriate information from the Veteran, and considering all the information of record. In addition, any impairment imposed by flare-ups, if described by the Veteran, should be quantified to the extent possible. A clear rationale must be provided for all opinions expressed. The examiner must consider the Veteran’s lay statements. If the examiner is unable to provide an opinion without resorting to mere speculation then the examiner must state this and provide any information needed to provide an opinion, if possible. 3. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Saudiee Brown, Associate Counsel