Citation Nr: 20004758 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 13-21 929A DATE: January 21, 2020 REMANDED Entitlement to a rating higher than 20 percent for the service-connected thoracolumbar spine disability from December 5, 2012, is remanded. REASONS FOR REMAND The Veteran had active military service from November 1978 to September 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). REASONS FOR REMAND The Board's May 2017 Board remand indicates that the previous January 2016 VA examination was inadequate because the examination did not record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. The remand instructed the Agency of Original Jurisdiction (AOJ) to afford the Veteran a new VA orthopedic examination that includes this range of motion testing for pain. The remand also instructed that the examiner should express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups of the thoracolumbar spine, without resorting to speculation. A new examination was conducted in May 2018. That examination is inadequate because the examiner noted she was unable to determine without mere speculation the functional ability resulting from repetitive use and flare-ups and did not provide adequate reasoning for that determination. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017); Deluca v. Brown, 8 Vet. App. 202, 206 (1995). Additionally, the examiner did not conduct range of motion testing for pain in passive motion, nor did she conduct a non-weightbearing assessment of the spine. See Correia v. McDonald, 28 Vet. App. 158 (2016). Moreover, in the transcript of the July 2019 Board hearing, the Veteran expressed his disagreement with how the examination of his thoracolumbar spine was conducted. As the May 2018 examination failed to comply with the Board’s remand instructions or with the requirements in Sharp and Correia, remand is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA spine examination with an orthopedic doctor to determine the current severity of his service-connected thoracolumbar spine disability. The claims file, including a copy of this remand, should be reviewed by the examiner. The examiner is to describe the severity, frequency, and duration of all symptomatology associated with the thoracolumbar spine disability. The thoracolumbar spine should be tested for pain on both active and passive motion, in weightbearing and non-weightbearing conditions, if possible. If this cannot be performed, the examiner should explain why with specificity. The examiner should note whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use over time or during flare-ups. The examiner should assess additional functional impairment in terms of the degrees of additional range of motion loss, if possible. If the Veteran is not being observed during a flare-up or after repeated use over time during the examination, the examiner should still estimate any additional functional impairment based on the evidence of record and the Veteran’s lay descriptions of repeated use of the flares’ severity, frequency, duration, and/or functional loss manifestations. To be clear, the Veteran should be asked to give lay descriptions of such characteristics, and the examiner should consider his response in formulating the opinion. If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so with specificity. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based on the limitation of knowledge in the medical community at large and not a limitation whether based on lack of expertise, insufficient information, or unprocured testing of the individual examiner. The examiner is also requested to provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has bladder dysfunction as a result of his thoracolumbar spine disability. If not, the examiner should address the causes of bladder dysfunction. A complete rationale is requested. Citation to medical literature and accepted medical principals would be of assistance to the Board. The Veteran’s lay contentions should be taken into consideration. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fairlie, 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.