Citation Nr: 1827484 Decision Date: 05/02/18 Archive Date: 05/14/18 DOCKET NO. 10-44 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an increased disability rating for lumbar strain. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Smith, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from November 1983 to November 1987. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In October 2015, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been included with the file. In March 2017, the appeal was remanded to obtain a VA examination with retrospective and current medical opinions. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND It is necessary to adequately adjudicate the Veteran's claim for an increased rating for his back condition. The Veteran has reported flare-ups resulting from his service-connected back condition. He indicated as such at the October 2015 hearing, stating that he has constant pain and flare-ups. Additionally, at the October 2017 VA examination, the Veteran reported flare-ups of his back, which he described as sharp debilitating pain with difficulty getting out of bed and getting up from a sitting or standing position. Given the Veteran's credible reports, flare-ups appear to play a significant part in his disability picture for his service-connected back condition. The October 2017 VA examiner did note the Veteran's reports of flare-ups. However, as to whether pain, weakness, fatigability, or incoordination significantly limits the Veteran's functional ability during flare-ups, the examiner indicated "unable to say without mere speculation." The examiner indicated he was unable to describe in terms of range of motion and explained that there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. Following the previous remand, the Court addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017). In that case, the Court held that a VA examiner must attempt to elicit information from the record and from 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. The Court also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Per the Court's decision in Sharp v. Shulkin, the explanation provided by the October 2017 VA examiner is not adequate. As such, in the VA examination conducted per this remand, the examiner must clearly state that he or she reviewed the record and attempted to elicit functional impairment information from the Veteran before stating that a degree estimate of range of motion loss due to functional impairment cannot be given. The examiner must also provide an explanation of any inability to estimate motion loss in terms of degrees. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a new VA examination with an appropriate examiner to ascertain the current severity and manifestations of his service-connected back disability in accordance with VA rating criteria. The claims file must be made available to the examiner, and the examiner should state in the opinion that review of the electronic record was accomplished. The examiner must consider the Veteran's lay statements and provide all information required for rating purposes. i) Specifically, the examiner is advised that it is necessary to consider, along with the schedular criteria, functional loss due to pain, fatigability, incoordination, pain on movement, and weakness. ii) Additionally, the examiner must test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-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. iii) Importantly, in regard to additional functional loss due to flare-ups, the examiner must clearly state that he or she reviewed the record and attempted to elicit functional impairment information from the Veteran before stating that a degree estimate of range of motion loss due to functional impairment cannot be given. The examiner must also provide an explanation of any inability to estimate motion loss in terms of degrees. 2. After completing the above actions, readjudicate the claim on appeal. If the benefits sought on appeal remain denied, the Veteran should be furnished an appropriate Supplemental Statement of the Case and be provided an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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 (West 2012). _________________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (West 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).