Citation Nr: 18157968 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 12-22 226 DATE: December 14, 2018 REMANDED Entitlement to a rating in excess of 20 percent for a back disability, characterized as degenerative spondylosis of the lumbosacral spine is remanded. REASONS FOR REMAND The Veteran had active duty service from April 1963 to March 1966, and from May 1969 to February 1990. In a July 2017 decision, the Board denied a rating in excess of 20 percent for the Veteran’s back disability, and granted two separate 10 percent ratings for bilateral lower extremity radiculopathy, respectively. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (Court). In July 2018, the Court granted a Joint Motion for Remand (JMR), which vacated the Board’s decision only to the extent the Board denied a rating in excess of 20 percent for a back disability. The Veteran did not appeal the Board’s denial of separate ratings in excess of 10 percent for bilateral lower extremity radiculopathy. The claim was subsequently returned to the Board for additional development and consideration.   Entitlement to a rating in excess of 20 percent for a back disability, characterized as degenerative spondylosis of the lumbosacral spine is remanded. The Board finds that the Veteran’s February 2016 VA examination was inadequate to adjudicate the issue on appeal. Specifically, the Board notes that as the Court held in Sharp, while there is no requirement that the examiner directly examine the Veteran during a flare-up, or have “objective” evidence regarding the Veteran’s range of motion during a flare-up, the examiner must nevertheless elicit information from the Veteran about his additional limitations during a flare-up and/or following repeated use over time, and explain whether such information could be gleaned from the sources available to him. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In this case, the February 2016 VA examiner noted that the Veteran had reports of flare-ups and pain with additional functional loss or impairment during flare-ups and repeated use. However, the examiner failed to approximate the Veteran’s range of motion during a flare-up or repeated use without any explanation. Therefore, this opinion is not adequate. Accordingly, a new VA examination is necessary to determine whether the Veteran has additional limitation of motion during flare-ups or following repeated use over time. See Sharp, 29 Vet. App. at 33; Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matter is REMANDED for the following action: 1. Obtain any and all treatment records from the VA Medical Center in San Antonio, Texas, since May 2018, and any other VA facility from which the Veteran has received treatment. If the Veteran has received additional private treatment, he should be afforded an appropriate opportunity to submit them. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and severity of his back disability. The claims folder should be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. The examiner should specifically test the range of motion in active motion, passive motion, weight-bearing, non-weight-bearing, and after repeated use over time. 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 also obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups and repeated use from the Veteran. The examiner should elicit relevant information as to the Veteran’s flare-ups with a description of the additional functional loss, if any, the Veteran has during flare-ups and after repeated use.   After reviewing and considering all available relevant evidence, including the Veteran’s statements, the examiner should provide his or her best estimate as to the Veteran’s functional loss due to flare-ups and repeated use. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel