Citation Nr: 19163003 Decision Date: 08/14/19 Archive Date: 08/14/19 DOCKET NO. 13-28 634 DATE: August 14, 2019 REMANDED A rating higher than 20 percent for lumbosacral spondylosis without myelopathy is remanded. REASONS FOR REMAND The Veteran served honorably on active duty from January 1981 to March 2001. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran seeks a rating higher than 20 percent for his lumbosacral spondylosis without myelopathy. His claim is back before the Board having been remanded for the second time in April 2018. That decision states that remand was necessary because the Veteran had challenged the adequacy of the October 2017 examination and because the examiner’s opinion did not comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017). An examiner evaluating a musculoskeletal disability must express an opinion as to whether pain, fatigue or weakness could significantly limit functional ability during flareups or after repetitive use over time. If feasible, the examiner should express his opinion in terms of what additional range of motion (ROM) would be lost. The Court in Sharp said, should an examiner state that such an opinion would be speculation, his assertion will be accepted if the examiner is able to state for the record (1) all procurable medical evidence had been considered, including the veteran's description as to the severity, frequency, duration of the flare-ups and the veteran’s description as to the extent of functional loss during a flare-up and after repetitive use over time; (2) that there is no additional evidence which, if obtained, would allow him to offer the requested opinion; (3) his assertion is due to the limits of knowledge of the medical community in general and not due to limits of his training; and (4) his assertion is not due to a general aversion on his part to offering an opinion on issues not directly observed. Id. The Board finds that its instructions on remand were not substantially complied with. The doctor who examined the Veteran in October 2018 noted that pain significantly limited the Veteran’s functional ability with repeated use over a period of time. The examiner then stated it would be speculative to report additional ROM loss due to repeated use over a period of time when such had not been documented in actual records. The opinion does not comply with Sharp. The matters are REMANDED for the following action: 1. Update the record as necessary with pertinent medical records. 2. Schedule the Veteran for a new examination to determine the current severity of the Veteran’s lumbosacral spondylosis without myelopathy. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss due to flare-ups and to repetitive use over time. To the extent possible, the examiner should provide an opinion in terms of additional loss of range of motion during flareups or after repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state (1) 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 of the extent of functional loss during a flare-up and after repetitive use over time; (2) whether the inability is due to the limits of knowledge in the medical community or to limits of the examiner's training; and (3) whether there is additional evidence which, if obtained, would permit the opinion to be provided. The examiner should not decline to offer an opinion due to a general reluctance to offer an opinion on issues not directly observed. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Mucklow, 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.