Citation Nr: 19172007 Decision Date: 09/17/19 Archive Date: 09/17/19 DOCKET NO. 16-08 115 DATE: September 17, 2019 REMANDED Entitlement to a rating in excess of 10 percent for degenerative changes of the lumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February 1982 to September 2003. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Newington, Connecticut. Entitlement to a rating in excess of 10 percent for degenerative changes of the lumbar spine is remanded. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the United States Court of Appeals for Veterans Claims (Court) held that when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire as to whether there are periods of flare-ups and, if so, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.” Sharp at 32. The Court further explained that in the event an examination is not conducted during a flare-up, the “critical question” in assessing the adequacy of the examination is “whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares.” Id. at 34 (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011)). During the most recent VA examination in July 2014, it was noted the Veteran suffered from flare-ups. Although the report contains some information regarding the frequency of such flare-ups, the examiner declined to offer an opinion with respect to functional ability during flare-ups, or when the back was used repeatedly over a period of time, noting that such a determination would require “mere speculation.” Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time at the time of an examination, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. Here, that does not appear to have been done. As such, a new examination is necessary. This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed, schedule the Veteran for an examination of his low back. The examiner should provide a full description of the Veteran’s associated functional impairments as they relate to the relevant rating criteria. The examination must include testing for pain on both active and passive motion, and in weight bearing and non-weight bearing, if possible. If such testing is not feasible, the examiner should explain why. The examiner must attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran’s competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner’s conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Smith, 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.