Citation Nr: 18157477 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 17-00 941 DATE: December 13, 2018 REMANDED Entitlement to an initial rating in excess of 10 percent for a low back disability, identified as disc displacement with myelopathy and degenerative changes, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1984 to June 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a July 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). Entitlement to an initial rating in excess of 10 percent for a low back disability, identified as disc displacement with myelopathy and degenerative changes, is remanded. The Veteran was provided VA examinations to evaluate his low back disability in July 2014 and November 2016. Two recent decisions of the Court of Appeals for Veterans Claims (Court) have highlighted issues that render both examinations inadequate. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court provided a precedential interpretation of the final sentence of 38 C.F.R. § 4.59 and held that VA examinations must, wherever possible, include range of motion testing of the pertinent joint for pain, as well as any paired joint, in active motion, passive motion, and in weight-bearing and non-weight-bearing. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must “elicit relevant information as to the veteran’s flares or ask him to describe the additional functional loss, if any, he suffered during flares and then 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 July 2014 examination did not provide the testing required under Correia. No indication as to why this testing was not provided was included in the examination report. The Veteran reported ongoing pain and stiffness in his low back with mid back pain in cold weather. This report indicates his symptoms increased or flared during cold weather. However, the examiner recorded no flares and did not attempt to describe additional functional loss during flares. The examination is inadequate to evaluate the Veteran’s back disability. See Correia, supra; see also Sharp, supra. The November 2016 examination did not provide the testing required under Correia. The examiner explained that testing for passive range of motion, non-weight bearing range of and weight-bearing range of motion was “not medically appropriate as it might harm the [V]eteran.” The Board notes initial range of motion testing and testing after repetitive use was performed. The examiner did not indicate why some range of motion testing was appropriately provided while other testing was deemed possibly harmful. In addition, the Veteran reported that he experienced flares and described pain that worsened “after bending or sitting for long times.” The examiner stated he was unable to evaluate the functional loss due to pain, weakness, fatigability or incoordination during a flare without resorting to mere speculation because the examination was not conducted during a flare. The examiner did not provide an estimate of functional loss based on information from the Veteran. The examination is inadequate to evaluate the claim. Id. The matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his low back disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. The examiner should identify all low back pathology found to be present. If possible and medically sound, the examiner should conduct all indicated tests and studies, to include range of motion studies. The low back should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If the Veteran reports flare-ups, the examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeanne Celtnieks, Associate Counsel