Citation Nr: 20008069 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 13-16 741 DATE: January 30, 2020 REMANDED Entitlement to an increased rating for a service-connected lumbar spine disability, currently rated as 10 percent disabling prior to September 25, 2017 and as 20 percent disabling since then, is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1976 to July 1976, from December 1990 to May 1991, from January 2003 to January 2009, from May 2009 to April 2010, and from August 2010 to June 2011. This case comes to the Board from a September 2011 decision of the Agency of Original Jurisdiction (AOJ). The Board remanded this appeal in June 2017 and, most recently, in September 2018. Although the Board regrets the need for further delay, for the reasons below, another remand is necessary. When an appeal is remanded, the claimant obtains a right to compliance with the Board’s remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). In its most recent remand, the Board instructed the AOJ to obtain copies of the Veteran’s records of VA medical treatment since August. The requested records are not currently available in the electronic claims file and it is unclear whether the AOJ made any attempts to obtain them. Pursuant to Stegall, the Board must remand this case to enforce compliance with its order to acquire copies of these records. It appears that the AOJ did attempt to comply with the Board’s second order – to schedule a new examination of the lumbar spine and obtain a report from the examiner. The examination report, dated October 2019, contains much useful information, including the examiner’s estimate, in degrees, of the effective range of motion in the Veteran’s lumbar spine after repeated use over time and during “flare-ups” or periods when the symptoms are at their worst. Unfortunately, the examiner did not provide separate sets of test results indicating, in degrees, the range of motion of the Veteran’s lumbar spine using each of the testing methods required by 38 C.F.R. § 4.59 – i.e., in active and passive motion and with weight bearing and in nonweight-bearing. Section XVII of the report (“remarks”) indicates whether there was objective evidence of pain during each of these tests. But the examiner did not indicate the point, in degrees, when this pain began. In failing to do so, the examiner failed to comply with the following language from the second paragraph of part two of the September 2018 remand orders: “IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING THE REQUIRED RANGE OF MOTION TESTS.” (emphasis in original). Finally, it appears that the AOJ failed to issue a Supplemental Statement of the Case (SSOC) before returning the case to the Board as required by 38 C.F.R. § 19.31(c). The matters are REMANDED for the following action: 1. Obtain and associate with the claims folder copies of all records of the Veteran’s VA treatment since August 2018. 2. Schedule a VA examination to ascertain the current severity of the Veteran’s service-connected disability of the lumbar spine. The VBMS and Virtual VA electronic claims files must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the lumbar spine disability should be identified. In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion in the Veteran’s lumbar spine and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weight bearing and nonweight-bearing. The examiner’s report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED RANGE OF MOTION TESTS. If any of these findings are not possible, please provide an explanation. To comply with Sharp v. Shulkin, 29 Vet. App. 26, 33, 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. If the Veteran is not capable of range of motion testing due to pain, the examiner should ask him to describe and/or demonstrate the extent of motion loss in terms of degrees during periods when he is not experiencing a flare-up. WHETHER OR NOT THE VETERAN IS EXPERIENCING A FLARE-UP DURING THE EXAMINATION, THE EXAMINER SHOULD ASK HIM HOW FREQUENTLY HE EXPERIENCES FLARE-UPS AND HOW LONG FLARE-UPS LAST WHEN THEY OCCUR. THE EXAMINER SHOULD RECORD THE VETERAN’S ANSWERS TO THESE QUESTIONS IN HIS OR HER REPORT. 3. The AOJ must ensure that the examination report requested above is in compliance with the directives of this remand. If any report or opinion is deficient in any manner, the AOJ must implement corrective action. 4. If any benefit sought by the Veteran remains denied, the AOJ should provide the Veteran and his representative with a Supplemental Statement of the Case (SSOC) before returning this appeal to the Board. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.