Citation Nr: 20021020 Decision Date: 03/24/20 Archive Date: 03/24/20 DOCKET NO. 17-05 962 DATE: March 24, 2020 REMANDED Entitlement to an increased rating greater than 20 percent for chronic posttraumatic low back syndrome is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1989 to March 1994. The Veteran appeals an October 2015 rating decision by the Agency of Original Jurisdiction (AOJ) denying a rating greater than 20 percent for her chronic posttraumatic low back syndrome. In January 2019, the Board denied the claim. The Veteran appealed that denial to the Court of Appeals for Veterans Claims (Court). In November 2019, the Court granted a Joint Motion for Remand (JMR) filed by representatives for both parties and remanded it to the Board for further proceedings consistent with the JMR. The case has returned to the Board for further appellate proceedings. The Veteran was most recently afforded a VA examination for her chronic posttraumatic low back syndrome in September 2015. The examiner noted the Veteran’s complaints of pain limiting her ability to bend forward. See September 2015 VA examination report. 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. Further, 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. See Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). 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, 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 her chronic posttraumatic low back syndrome 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 her 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 her chronic posttraumatic low back syndrome. 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). 3. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and her 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.