Citation Nr: 19167992 Decision Date: 09/03/19 Archive Date: 09/03/19 DOCKET NO. 16-13 842 DATE: September 3, 2019 REMANDED Entitlement to an evaluation in excess of 10 percent prior to July 11, 2018 and in excess of 20 percent thereafter for lumbar strain with arthritis, lower back pain is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 1982 to January 1986 and from January 1986 to February 2006. This matter comes before the Board of Veteran’s Appeals (Board) from a July 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama which continued the Veteran’s 10 percent disability rating for her lower back disability. During the pendency of the appeal, RO issued a Supplemental Statement of the Case (SSOC) and a rating decision in September 2018 increasing the Veteran’s disability rating from 10 percent to 20 percent effective July 12, 2018. As this rating does not constitute a full grant of benefits, the claim is still on appeal before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (Travel Board hearing) in June 2019. A transcript of the hearing has been associated with the record. Entitlement to an evaluation in excess of 10 percent prior to July 11, 2018 and in excess of 20 percent thereafter for lumbar strain with arthritis, lower back pain is remanded. The Veteran was originally awarded service-connection with a 10 percent disability rating for her lower back disability in a February 2007 rating decision. In August 2013, the Veteran’s representative presented a claim before VA for an increase in rating of the Veteran’s disabilities, including her back disability. The Veteran was most recently examined by VA for her back disability in July 2018. In a September 2018 SSOC and rating decision, RO increased the Veteran’s disability rating from 10 percent to 20 percent based on the VA examination of July 2018. The Veteran contends that her July 2018 examination does not reflect the severity of her condition. The Board notes the Veteran’s hearing testimony regarding her symptoms and the impact they have on her everyday life and work. The Veteran testified that she suffers from constant pain in her lower back that radiates into her thighs and make it difficult to sit for long periods of time. See Hearing transcript at page 3. Furthermore, the Veteran testified that she has experienced flareups which have made her seek medical help for relief. See Hearing transcript page 5. The Veteran additionally stated that she was not adequately examined regarding her range of motion as she was not given clear instructions when tested. See hearing transcript at page 10. The Veteran reported additional symptoms such as: frequent urination, numbness going down her thighs, and fogginess which she attributes to the medication she takes for the pain. The Board notes the July 2018 examination contains inconsistencies regarding the Veteran’s pain and functional loss with repetitive motion. The examiner noted that the Veteran has pain with functional loss and later determined that the Veteran suffers no additional loss of function or range of motion with repetitive motion. This finding is inconsistent with the Veteran’s medical records and statements throughout the appeal where she contends that her pain aggravates with movement. As such, the Board finds that a new examination must be conducted to ascertain the current severity of the Veteran’s back disability. The matters are REMANDED for the following action: 1. Update VA and private treatment records. All records/responses must be associated with the electronic claims file. 2. Thereafter, schedule the Veteran for a VA examination to address the current severity of her service-connected back disability. The claims file must be made available to the examiner, including a complete copy of this remand, in conjunction with the examination. All clinical findings must be reported in detail and correlated to a specific diagnosis. a. In order to comply with the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing “for pain on both active and passive motion, in weight bearing and non-weight-bearing” or provide an adequate explanation for why the examiner was unable to conduct such an examination. b. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. The examination report must include a complete rationale for all opinions expressed. If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e., additional facts are required, or the examiner does not have the needed knowledge or training). 3. Thereafter, readjudicate the issue on appeal. If the claim remains denied, provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate period of time for response before the case is returned to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado 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.