Citation Nr: 18156047 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 07-26 384 DATE: December 6, 2018 REMANDED Entitlement to an initial rating in excess of 10 percent prior to February 22, 2018, and in excess of 20 percent thereafter for a lumbar spine disability, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1983 to January 1986, May 1987 to May 1991, July 2002 to November 2002, and August 2004 to August 2006. He also served in a reserve component of the military as well as in the Army National Guard, including periods of active duty for training from May 2007 to October 2007, and May 2010 to September 2010. The issue is on appeal from a November 2006 rating decision, where the Veteran was granted a 10 percent disability rating for his lumbar spine disability, effective August 15, 2006. In June 2017, the Board of Veterans’ Appeals (Board) denied entitlement to an increased disability rating for the Veteran’s service-connected lumbar spine disability. The Veteran appealed the decisions to the United States Court of Appeals for Veterans Claims (Court). In June 2018, the Court issued a Joint Motion for Remand (JMR), vacating the June 2017 denial and on remand, requiring the Board to obtain an adequate medical opinion on the functional loss or limitation of motion the Veteran experiences during flare-ups of the lumbar spine, and then address this evidence. Additionally, in April 2018, the Veteran was granted an increased rating of 20 percent, effective February 22, 2018, for his lumbar spine disability. However, as less than the maximum available benefit for a schedular rating was awarded and because the increases were not awarded for the entirety of the claim period, the claims remain before the Board. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993). Entitlement to an initial rating in excess of 10 percent prior to February 22, 2018, and in excess of 20 percent thereafter for a lumbar spine disability, is remanded. As discussed above, the June 2018 Court JMR found the medical opinions of the June 2008 and April 2012 VA examinations to be inadequate. In an effort to ensure an adequate evaluation of the Veteran’s functional loss due to his reported flare-ups of the lumbar spine, the Board finds the June 2008 and April 2012 examiners’ opinions are incomplete. Both examinations did not address the reported flare-ups of the lumbar spine related to normal daily activities, nor did they provide findings of any actual or estimated loss of range of motion during the flare-ups. Therefore, a remand is necessary for another examination prior to adjudicating these claims. Further, since the April 2012 examination, the Veteran has been afforded a VA examination in March 2018 for his lumbar spine disability. This VA examination was not reviewed by the Court in its June 2018 JMR. Unfortunately, however, this examination and medical opinion is also inadequate as it pertains to the Veteran’s functional loss during flare-ups. Specifically, the Veteran reported that the pain during his flare-ups was so bad that he could not get out of bed in less than 20 minutes every morning, and he must stop every 30 minutes to walk and stretch while driving as it was painful. The reported functional loss was pain, and limitation of any physical activity including lifting, carrying, or bending. However, the examiner stated the examination was not being conducted during a flare-up and therefore, the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups. Additionally, the examiner was unable to say without mere speculation as to whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups because the examination was not conducted during a flare-up. In an effort to ensure an adequate evaluation of the Veteran’s functional loss due to his reported flare-ups of the lumbar spine, the Board finds the March 2018 VA examiner’s opinion is incomplete. The matter is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of his lumbar spine disability. All diagnostic findings should be reported, including range of motion (active and passive). In addition to range of motion testing, the examiner is specifically asked to determine whether the Veteran’s service-connected lumbar spine disability results in any additional loss of motion due to weakness, excess fatigability, pain, flare-ups, or incoordination. The examiner should provide a complete and thorough rationale for all opinions offered. If the examiner cannot provide an opinion without resorting to mere speculation, then he or she must provide a complete and thorough rational as to why an opinion cannot be provided. (Continued on next page) 2. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Lee, Associate Counsel