Citation Nr: 18100746 Decision Date: 04/20/18 Archive Date: 04/20/18 DOCKET NO. 14-34 253A DATE: April 20, 2018 ISSUES DECIDED: 6 ISSUES REMANDED: 5 ORDER The claim of entitlement to service connection for inflammatory bowel disease is denied. The claim of entitlement to service connection for tobacco use disorder (claimed as cigarette smoking) is denied. The claim of entitlement to service connection for urethritis is denied. The claim of entitlement to service connection for prostatitis is denied. The claim of entitlement to service connection for drug abuse is denied. The claim of entitlement to service connection for alcohol abuse is denied. FINDINGS OF FACT 1. Inflammatory bowel disease is not shown to be causally or etiologically related to any disease, injury, or incident in service. 2. Tobacco use or cigarette smoking is not a disability for which service connection can be granted. 3. Urethritis has not been present during the period of the claim. 4. Prostatitis has not been present during the period of the claim. 5. No service connected disorder has caused or aggravated the Veteran’s drug abuse. 6. No service connected disorder has caused or aggravated the Veteran’s alcohol abuse. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for irritable bowel disease have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017). 2. The criteria for establishing entitlement to service connection for tobacco use disorder has no legal merit. 38 U.S.C. §§ 105, 1110 (West 2014); 38 C.F.R. § 3.300 (2017). 3. The criteria for establishing entitlement to service connection for urethritis have not been met. 38 U.S.C. §§ 1131 (West 2014); 38 C.F.R. § 3.303 (2017). 4. The criteria for establishing entitlement to service connection for prostatitis have not been met. 38 U.S.C. §§ 1131 (West 2014); 38 C.F.R. § 3.303 (2017). 5. The Veteran’s claim for service connection for drug abuse has no legal merit. 38 U.S.C. §§ 105, 1110 (West 2014); 38 C.F.R. §§ 3.1 (n), 3.301(c) (2017). 6. The Veteran’s claim for service connection for alcohol abuse has no legal merit. 38 U.S.C. §§ 105, 1110 (West 2014); 38 C.F.R. §§ 3.1 (n), 3.301(c) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the United States Navy from January 1977 to January 1981. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Duties to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if preexisting such service, was aggravated thereby. 38 U.S.C. 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2017). In general, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Board must assess the credibility and weight of all of the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Furthermore, in determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert, 1 Vet App. at 49. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2015). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic.” When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2014). A recent decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue. 1. Entitlement to service connection for irritable bowel disease. The Veteran seeks service connection for irritable bowel disease. The Veteran has provided very few details regarding a theory of entitlement for this disability. VA treatment records show treatment for gastrointestinal problems. However, the record does not include a medical opinion addressing the etiology of any gastrointestinal disorder. The Veteran’s service treatment records are silent as to any treatment or complaints related to irritable bowel syndrome. As noted above, the Veteran has not provided information regarding his claim and the evidence of record does not otherwise suggest that his claimed irritable bowel syndrome may be attributable to service. Specifically, he has not identified any in-service incidents to which he attributes his claimed irritable bowel syndrome. Accordingly, there is no basis to establish service connection for irritable bowel syndrome. 2. Entitlement to service connection for tobacco use disorder. The Veteran asserts that he is entitled to service connection for tobacco use disorder. He asserts that he started smoking during service. VA treatment records document a history of tobacco use. For claims filed after June 9, 1998, Congress has prohibited the grant of service-connection for a disability due to the use of tobacco products during active duty service. 38 U.S.C. § 1103 (a) (West 2014). However, the VA General Counsel has held that neither 38 U.S.C. § 1103 (a), nor its implementing regulation at 38 C.F.R. § 3.300, bar a finding of secondary service connection for a disability related to use of tobacco products after service. See VAOPGCPREC 6-03 (Service Connection for Cause of Disability or Death, 69 Fed. Reg. 25178 (2004)). Therefore, the Veteran’s claims for entitlement to service connection for tobacco use disorder must be denied. He filed his claim in 2012, and the law clearly states that service connection may not be established for tobacco use on the basis that it resulted from disease or injury attributable to the use of tobacco products during active service. In addition, there is no basis in the regulations on which to award service connection for tobacco use itself. See generally 38 C.F.R. Part 4 (VA Schedule for Rating Disabilities) (does not contemplate a separate disability rating for tobacco use). 3. Entitlement to service connection for urethritis. Please see section number four below. 4. Entitlement to service connection for prostatitis. At the outset, the Board notes that the cornerstone of any VA disability compensation claim is the presence of a current diagnosed disability. The Veteran asserts service connection for urethritis and prostatitis. However, the record does not show that the Veteran was diagnosed with urethritis and prostatitis. The Veteran was afforded a VA examination in August 2013. The VA examiner conducted a thorough examination, but ultimately concluded that a diagnosis of urethritis or prostatitis was not warranted. Moreover, the Veteran has not submitted any evidence showing a medical diagnosis. Additionally, he has not provided any details regarding his claimed urethritis or prostatitis. In sum, the Board finds the preponderance of the evidence indicates the Veteran has not satisfied the clinical criteria necessary to establish a diagnosis of prostatitis and urethritis at any time throughout the pendency of his claim. As the Veteran has not shown a current disability for which service connection can be granted, the claims for service connection for prostatitis and urethritis must be denied. 5. Entitlement to service connection for drug abuse. Please see section number six below. 6. Entitlement to service connection for alcohol abuse. The Veteran asserts that his alcohol abuse and drug abuse are related to his active duty service. He contends that he started abusing alcohol and drugs during service. VA compensation shall not be paid if the claimed disability or death was the result of the person’s own willful misconduct or abuse of alcohol or drugs. See 38 U.S.C. §§ 105, 1110; 38 C.F.R. §§ 3.1 (n), 3.301(c). With respect to alcohol and drug abuse, Section 8052 of the Omnibus Budget Reconciliation Act (OBRA) of 1990, Pub. L. No. 101-508, § 8052, 104 Stat. 1388, 1388- 351, prohibits, effective for claims filed after October 31, 1990, payment of compensation for a disability that is a result of a appellant’s own alcohol or drug abuse. Moreover, § 8052 also amended 38 U.S.C. § 105 (a) to provide that, with respect to claims filed after October 31, 1990, an injury or disease incurred during active service will not be deemed to have been incurred in the line of duty if the injury or disease was a result of the person’s own willful misconduct, including abuse of alcohol or drugs. See also VAOPGPREC 2-97. However, a veteran could receive compensation for an alcohol or drug abuse disability acquired as secondary to, or as a symptom of, a veteran’s service-connected disability. Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Rather, the statute precludes compensation only for (a) primary alcohol or drug abuse disabilities, and (b) secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol or drug abuse. The Federal Circuit defined “primary” as meaning an alcohol abuse disability arising during service from voluntary and willful drinking to excess. See Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001). Therefore, the Veteran’s claims for entitlement to service connection for alcohol abuse and drug abuse must be denied. He filed his claims in 2012, and the law clearly states that service connection may not be established on a direct basis for a disease or injury that results from a claimant’s abuse of alcohol or drugs for claims filed after October 31, 1990. There is a lack of entitlement under the law for direct service connection for alcohol abuse and drug abuse, and the Board must deny the claims. Sabonis v. Brown, 6 Vet. App. 426 (1994). In addition, the evidence does not suggest and the Veteran has not asserted that his alcohol abuse or drug abuse are secondary to his service-connected disabilities. Therefore, the claims for entitlement to service connection for alcohol abuse and drug abuse do not present a basis for which relief may be granted, and have no legal merit. As the disposition of the claims is based on the law not the facts, the claims must be denied based on lack of entitlement under the law. Sabonis, 6 Vet. App. at 430. REMANDED ISSUES 1. Entitlement to service connection for bronchitis. The Veteran contends that he was treated for bronchitis during service and that he continued to be treated for bronchitis after service. His December 1976 enlistment examination revealed no abnormalities of the lungs or chest. However, the associated report of medical history documented his report of pain or pressure in the chest and that he was treated for bronchitis when he was 18 years old. Service treatment records do not reflect treatment for bronchitis during service. A 1978 statement in the service treatment records indicated that the Veteran was exposed to otto fuel and that inhalation of otto fuel was extremely toxic and could cause nasal irritation, congestion, or frontal headaches. His December 1976 separation examination revealed normal lungs and chest. Post-service treatment records noted a history of recurrent bronchitis. The Board notes that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111 (West 2014). To rebut the presumption of soundness for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that a) the disease or injury existed prior to service, and b) the disease or injury was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The United States Court of Appeals for Veterans Claims (Court) has explained that clear and unmistakable evidence means the evidence, “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Vanerson v. West, 12 Vet. App. 254, 258-59 (1999); see also id. at 263 (Nebeker, C.J., concurring in part and dissenting in part) (“[O]nly an inference that is iron clad and copper riveted can be ‘unmistakable.’”). In light of the above, the Board finds that the Veteran is entitled to a VA examination to determine whether his bronchitis is related to service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). 2. Entitlement to service connection for erectile dysfunction. The Veteran’s service treatment records include multiple entries for treatment for urethritis. He was treated for the disorder in April 1978, July 1980, and December 1980. He was provided a VA examination in August 2013. The examiner diagnosed erectile dysfunction. The Veteran reported that his erectile dysfunction problems started two to three years prior. The VA examiner opined that it was less likely than not that his erectile dysfunction was related to service, to include the urethritis from neisseria gonorrhea that occurred in July 1980. The rationale was that the Veteran did not report erectile dysfunction until many years after service. The Board finds that the August 2013 VA medical opinion is inadequate for adjudication purposes. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Initially, it appears that the VA examiner appear to rely solely on the lack of medical documentation in the post-service treatment records to support the conclusion that his erectile dysfunction was not related to service. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (the lack of contemporaneous medical records does not, in and of itself, render lay evidence incredible or serve as an “absolute bar” to service connection). The VA examiner did not explain why his erectile dysfunction was unrelated to the in-service treatment for urethritis. Additionally, the VA examiner considered the July 1980 treatment for urethritis, but did not consider the other instances of treatment for urethritis during service. Therefore, the Board finds that a new medical opinion is required. 3. Entitlement to service connection for allergic rhinitis. The Veteran asserts that his allergic rhinitis symptoms started in service and that the treatment continued following service. An August 1977 dental health questionnaire indicated that the Veteran was currently under the care of a physician for allergies or sensitivities. Service treatment records also noted treatment for a head cold in April 1979 and November 1979, and a viral syndrome in October 1978. Additionally, as noted above, service treatment records indicated in-service exposure to otto fuel. Post-service medical records documented the Veteran’s treatment for allergic rhinitis. The Veteran was provided a VA examination in August 2013. The Veteran reported problems with allergies since service. His current treatment included allergy pills, nasal sprays, and eye drops. He described seasonal symptoms, usually during the spring and summer. The VA examiner noted that the Veteran gave a long history of seasonal allergy and that the severity of the symptoms varied by season. The VA examiner opined that it was less likely than not that his allergic rhinitis was related to service, to include the in-service treatment for a head cold and viral flu syndrome. In support of the medical opinion, the VA examiner stated that colds and acute viral syndromes did not cause seasonal allergies. The Board finds that the August 2013 VA medical opinion is inadequate for adjudication purposes. The August 2013 VA examiner did not provide sufficient rationale to support the conclusion. See Stefl v. Nicholson, 21Vet. App. 120, 124 (2007) (holding that a medical opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that a medical opinion that contains only data and conclusions without any supporting analysis is accorded no weight). Specifically, the VA examiner did not fully explain why a head cold or viral syndrome could not cause allergies. In addition, examiners simply are not free to ignore a veteran’s statements related to lay observable symptoms/events. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). The medical opinion did not include any discussion of the Veteran’s statements that his allergy symptoms started in service and continued since then. Also, the VA examiner did not consider the service treatment records showing that the Veteran was being treated for allergies or sensitivities in August 1977 and that he was exposed to otto fuel. Accordingly, the claim must be remanded for another VA examination. 4. Entitlement to an initial disability rating in excess of 10 percent for a lumbar spine disorder. In a recent decision, Correia v. McDonald, 28 Vet. App. 158 (2016), the Court determined that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Veteran’s lumbar spine was assessed in August 2013 and November 2016 VA examinations; however, the examiners did not conduct Correia-compliant testing. Based on the foregoing insufficiencies, a remand is required in order to obtain an adequate orthopedic examination. 5. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The issue of entitlement to a TDIU is inextricably intertwined with the claims remanded herein. As such, consideration of the Veteran’s TDIU claim must be deferred pending the outcome of the increased rating claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claim, to include VA treatment records from May 2016 to the present. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, the RO or the AMC should afford the Veteran a VA examination by a physician with sufficient expertise to determine the nature and etiology of his bronchitis. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. The examiner must state an opinion with respect to the following: (a) Whether the disorder clearly and unmistakably (undebatable based upon evidence that cannot be misinterpreted and misunderstood) existed prior to the Veteran’s entrance onto active duty. (b) If the disorder is found to have clearly and unmistakably preexisted service, the examiner should state an opinion as to whether it is clear and unmistakable (undebatable based upon evidence that cannot be misinterpreted and misunderstood) that the preexisting disorder did not permanently increase in severity as a result of service. (c) If the disorder is found not to have clearly and unmistakably existed prior to the Veteran’s entrance onto active duty, then the examiner must state an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that his bronchitis originated during his period of active service or is otherwise etiologically related to his active service, to include his exposure to otto fuel. The examiner is directed to specifically address (1) the Veteran’s statements that he was treated for bronchitis since 1977; (2) the December 1976 report of medical history noting a diagnosis of bronchitis when he was 18 years old; (3) the service treatment records showing occupational otto fuel exposure; and (4) the post-service treatment records indicating recurrent bronchitis. The rationale for all opinions expressed should also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. Then, the RO or the AMC should afford the Veteran a VA examination by a physician with sufficient expertise to determine the nature and etiology of his erectile dysfunction. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether it is at least as likely as not (a 50 percent probability or greater) that his erectile dysfunction was incurred in, was caused by, or is otherwise etiologically related to his military service, to include his in-service treatment for urethritis. The rationale for all opinions expressed should also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. Then, the RO or the AMC should afford the Veteran a VA examination by a physician with sufficient expertise to determine the nature and etiology of his allergic rhinitis. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. Following the examination and a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether it is at least as likely as not (a 50 percent probability or greater) that his allergic rhinitis was incurred in, was caused by, or is otherwise etiologically related to his military service. The examiner is directed to consider and discuss (1) the service treatment records showing treatment for a head cold and viral syndrome; (2) the August 1977 dental health questionnaire noting that the Veteran was under the treatment of a physician for allergies or sensitivity; (3) the Veteran’s statements that he was treated for allergies since service; and (4) the service treatment records showing exposure to otto fuel. The rationale for all opinions expressed should also be provided. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 5. Then, the AOJ should afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran’s service-connected lumbar spine disorder. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. The AOJ should ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The examiner must further discuss additional functional limitation of the lumbar spine with repetitive movement over time and during flare-ups. The examiner must describe whether pain, weakness, fatigability, or incoordination significantly limits functional ability with flare-ups or after repeated use over a period of time, and if so, the examiner must estimate range of motion (stated in degrees) during flare-ups or repetitive use. If the examination does not take place during a flare-up, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flare-ups or repetitive use and must consider all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups. 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. Furthermore, if any opinion cannot be offered without resort to mere speculation, the examiner should clearly explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. 6. Finally, the RO or the AMC should undertake any other development determined to be warranted, and then readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, the Veteran should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. The case should then be returned to the Board for further appellate action. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. N. Nolley, Associate Counsel