Citation Nr: 20023966
Decision Date: 04/07/20	Archive Date: 04/07/20

DOCKET NO. 11-31 511
DATE: April 7, 2020

REMANDED

Entitlement to a rating in excess of 40 percent for herniated nucleus pulposus (HNP) L5/S1 with anterior interbody fusion with spondylolisthesis of L5 on S1 is remanded.

REASONS FOR REMAND

The Veteran served on active duty from July 2004 to October 2009. These matters were previously adjudicated by the Board in December 2018. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In a November 2019 order, the Court remanded the case to the Board for action consistent with a November 2019 Joint Motion for Partial Remand (JMPR).

1. Entitlement to a rating in excess of 40 percent for herniated nucleus pulposus (HNP) L5/S1 with anterior interbody fusion with spondylolisthesis of L5 on S1 is remanded.

The February 2018 VA examination report is inadequate as the examiner did not provide an opinion regarding whether pain could significantly limit functional ability during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Further, the examiner inaccurately stated that the Veteran’s condition was essentially unchanged from the April 2014 examination, despite the Veteran reporting flare-ups and more severe pain at the February 2018 examination. An examination report based on inaccuracies is inadequate. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).

The matter is REMANDED for the following action:

1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected herniated nucleus pulposus (HNP) L5/S1 with anterior interbody fusion with spondylolisthesis of L5 on S1.  The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria.  

In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing.  If it is not possible to provide a specific measurement without speculation, the examiner must state the reason.  

The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements.  If it is not possible to provide a specific measurement without speculation, the examiner must state the reason.

2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal.  If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond.  If necessary, return the case to the Board for further appellate review.

 

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Creegan

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.