Citation Nr: 1808283 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 10-42 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a rating in excess of 10 percent for degenerative changes of the lumbar spine. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Purcell, Associate Counsel INTRODUCTION The Veteran served in the Army from April 1986 to June 1998 and from April 2004 to July 2004. This case comes to the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Waco, Texas. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets remanding this appeal another time, remand is required to obtain compliance with a prior Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a Court or Board remand confers upon the appellant the right to compliance with that order). In the June 2017 Board remand, the Board directed that a new VA examination be conducted and that the VA examiner describe any additional functional limitation after repetitive use over time or during flare-ups. The Board instructed that all functional losses should be equated to additional degrees of limitation of motion. During the July 2017 VA examination, the Veteran reported flare-ups during which he experienced a very sharp pain in his lower back. The Veteran also reported that it is difficult for him to ride his motorcycle for more than 30 minutes at a time, difficult to repeatedly bend, and pick something up, and that it is hard for him to get up after bending for some period of time. The July 2017 VA examiner noted that the Veteran has impaired repetitive bending ability. The VA examiner was unable to say without mere speculation whether pain, weakness, fatigability, or incoordination significantly limits functional ability with repetitive use over time or during a flare-up. By way of explanation, the examiner simply noted that the examination was not conducted after repetitive use over time or during a flare-up. As such, the VA examiner did not opine as to the extent of any additional impairment on use or in connection with flare-ups in terms of range of motion loss in degrees. As noted in the June 2017 Board remand, the Court has held that in finding an answer cannot be provided without resort to speculation, the examiner must clearly identify precisely what facts cannot be determined. See Jones v. Shinseki, 23 Vet. App. 382, 389-91 (2010). Furthermore, the phrase "without resort to mere speculation" should reflect the limitation of knowledge in the medical community at large and not merely that of a particular examiner. Id. In Sharp v. Shulkin, 26 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. As the July 2017 VA examiner did not provide an adequate explanation as to why estimates on functional loss with repetitive use over time and during flare-ups could not be made, further VA medical assessment is necessary on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain any additional VA treatment records, including records dated from March 2016 to the present. 2. Provide the Veteran with an appropriate examination to determine the current severity of his service-connected lumbar spine disability. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must test the range of motion in active motion, passive motion, 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. Further, the examiner must estimate any functional loss in terms of additional degrees of limited motion experienced during flare-ups and after repetitive use over time. If the examiner cannot provide the above-requested estimation without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. 3. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). _________________________________________________ V. Chiappetta Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).