Citation Nr: 19187807 Decision Date: 11/21/19 Archive Date: 11/20/19 DOCKET NO. 10-21 651 DATE: November 21, 2019 REMANDED Entitlement to a rating in excess of 40 percent for lumbosacral strain, to include on an extraschedular basis, is remanded. REASONS FOR REMAND The Veteran served on active duty from October1972 to October 1974, and June 1977 to January 1981. In February 2014, the Board remanded the appeal for additional development. In September 2016, the Board adjudicated multiple issues and denied the claims of entitlement to (1) service connection for a bilateral leg disability to include as secondary to service-connected disability and (2) a rating in excess of 40 percent for lumbosacral strain. The Veteran appealed these denied claims to the United States Court of Appeals for Veterans Claims (Court). In March 2017, the Court granted a Joint Motion for Partial Remand (JMPR) and vacated the Board’s September 2016 decision as to these two issues only. In February 2018, the Board remanded those claims, as well as a claim for entitlement to service connection for a ruptured Achilles tendon claimed as due to service-connected lumbosacral strain, for additional development consistent with the JMPR. In a September 2018 rating decision, the agency of original jurisdiction (AOJ) granted service connection for left lower extremity radiculopathy, right lower extremity radiculopathy, and a ruptured left Achilles tendon. Those issues are therefore no longer on appeal. The remaining claim for an increased rating for lumbosacral strain has been returned to the Board for further review. Finally, the Board again acknowledges the Veteran’s attorney’s request that the Board grant the Veteran’s claim for a total disability evaluation based on individual unemployability (TDIU). However, the TDIU claim, along with several service connection claims, was remanded by the Board in September 2016 and those actions have still not been completed. Thus, jurisdiction remains with the AOJ at this time. Increased Rating for Lumbosacral Strain In its February 2018 remand, the Board directed the AOJ to afford the Veteran a new examination to evaluate his back disability. An examination was conducted in September 2018. As part of the examination, the VA examiner was directed to answer several inquiries related to the Veteran's assertion of extraschedular consideration. The examiner did not respond to two of the Board’s four questions, specifically, whether the Veteran has any medical restrictions imposed on his activities due to his lumbosacral strain, or whether the Veteran takes any prescriptive medication that impact his cognitive or motor skills. As such, remand is necessary to ensure compliance with the Board’s prior remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additionally, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner reported that the Veteran experienced flare-ups and noted that the Veteran's reported symptoms were consistent with the examination but stated that an opinion as to any additional lost range of motion could not be provided without resort to speculation; however, the examiner did not indicate that the speculation was due to lack of knowledge within the medical community. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbosacral strain. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, 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. If it is not possible to provide a specific measurement 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). Additionally, the examiner must respond to the following questions: (a.) Does the Veteran have any medical restrictions imposed on his activities due to lumbosacral strain? (b.) Does the Veteran use or require any assistive devices due to lumbosacral strain? If so, state the frequency of use. (c.) Does the Veteran have difficulties with walking, standing, sitting, and/or instability associated with lumbosacral strain? (d.) Does the Veteran take any prescriptive medications for lumbosacral strain that impact cognitive or motor skills? 2. Then readjudicate the claim. If any benefit sought is not granted, the Veteran and his representative should be furnished an SSOC and given the requisite opportunity to respond before the case is returned to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mine, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.