Citation Nr: 20019791 Decision Date: 03/17/20 Archive Date: 03/17/20 DOCKET NO. 18-40 527 DATE: March 17, 2020 REMANDED Entitlement to a disability rating greater than 10 percent for a spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2006 to September 2006 and August 2008 to October 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran an increased rating for his spine disability greater than 10 percent. The Veteran was afforded a VA examination for his spine disability in February 2017. However, the examiner only gave one set of range of motion measurements. See February 2017 VA examination report. This is inconsistent with the holding in Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016), and 38 C.F.R. § 4.59. In response to a Correia inquiry, the examiner merely opined that testing would not be medically appropriate due to possible injury to the Veteran. See February 2017 VA examination report. No rationale was provided for this determination and, as such, the examination is inadequate for adjudicative purposes. See Nieves-Rodriguez v. Peake, 33 Vet. App. 295 (2008). Further, when asked whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time, the examiner responded that he was unable to say without mere speculation. See February 2017 VA examination report. Despite the report noting that the Veteran’s pain impairs his range of motion, the examiner’s explanation was that “there is insufficient objective information to make a determination free of speculation.” Id. The Court in Sharp v. Shulkin held that “the VA examiner [must] elicit relevant information as to the veteran’s flares or ask him to describe additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all evidence of record” or explain why he or she could not do so. 29 Vet. App. 26, 35 (2017). As to the examiner’s identical opinion and rationale regarding repetitive use over time, the Court in Lyles v. Shulkin held that “[a]s in Sharp, the examiners’ statements in this case reflect personal reluctance to offer the medical opinions necessary for a proper evaluation of a musculoskeletal disability.” 29 Vet. App. 107, 120 (2017). Moreover, the Veteran, through his representative, asserts this his condition has worsened. See Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997); see also February 2020 appellate brief. Therefore, on remand, the AOJ shall procure a new examination report in which an examiner performs the testing required by Correia and 38 C.F.R. § 4.59, and opines, consistent with Sharp and Lyles, the extent to which pain could limit the Veteran’s functional ability during a flare-up or because of repeated use over time. The examiner must estimate in degrees, if possible, the Veteran’s functional loss due to flares and repeated use over time, based on all the evidence of record, or adequately explain why this is not feasible. The matter is REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his spine disability that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. After the above has been completed, schedule the Veteran for an examination of the current severity of his spine disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and repeated use over time, as well as the degree of functional loss during flare-ups and repeated use over time. To the extent possible, the examiner should identify any symptoms and functional impairments due to the spine alone and discuss the effect of the Veteran’s spine on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, repeated use over time, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page)   3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.