Citation Nr: 18159681
Decision Date: 12/19/18	Archive Date: 12/19/18

DOCKET NO. 17-02 859
DATE:	December 19, 2018
REMANDED
Entitlement to a disability rating in excess of 20 percent for lumbosacral degenerative disc disease, herniated L4-5 disc, and intervertebral disc syndrome, is remanded.
REASONS FOR REMAND
The Veteran served on active duty from August 1996 to August 2004.
This matter comes to the Board of Veterans’ Appeals (Board) from an April 2016 rating decision which, in pertinent part, continued a 20 percent rating for lumbosacral degenerative disc disease, herniated L4-5 disc, and intervertebral disc syndrome (hereinafter “lumbar spine disability”).   
Entitlement to a disability rating in excess of 20 percent for lumbosacral degenerative disc disease, herniated L4-5 disc, and intervertebral disc syndrome, is remanded.
While the record contains a contemporaneous VA examination regarding the Veteran’s lumbar spine disability, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017).  While the examiner stated that an opinion could not be provided as to limitation of range of motion and function ability during a flare up without resort to speculation, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. 
Therefore, the Board finds that a remand is warranted for a VA examination that adequately assesses the severity of the Veteran’s lumbar spine disability.
A review of the record reflects that the Veteran’s lumbar spine disability is treated by a non-VA provider.  The most recent private treatment records on file are dated in April 2016.  Upon remand, the VA should obtain authorization and request any relevant private treatment records from April 2016 to the present.
The matter is REMANDED for the following actions:
1. Ask the Veteran to complete a VA Form 21-4142 for the San Diego Medical Center for April 2016 to the present.  Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 
2. Schedule the Veteran for an examination of the current severity of his lumbar spine disability.  The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing.  The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  To the extent possible, the examiner should identify any symptoms and functional impairments due to his lumbar spine disability alone and discuss the effect of the Veteran’s lumbar spine disability on any occupational functioning and activities of daily living.  If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).
3. After completing the above, and any other development as may be indicated, the Veteran’s claim should be readjudicated based on the entirety of the evidence.  If the claim remains denied, the Veteran should be issued a supplemental statement of the case (SSOC).  An appropriate period of time should be allowed for response.  Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.
 
K. PARAKKAL
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Owen, Associate Counsel