Citation Nr: 20028831 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 11-00 926 DATE: April 24, 2020 REMANDED Entitlement to a disability rating exceeding 20 percent for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1965 to August 1969. The Veteran testified before a Veterans Law Judge (VLJ), Barbara Copeland, at a May 2013 hearing. In March 2020, the Board notified the Veteran that VLJ Copeland retired and offered the Veteran an opportunity for a new hearing. While the Board allowed the Veteran thirty days to request a new hearing, the Board has not received response to date from the Veteran indicating he would like another hearing. Therefore, the Board will proceed to remand this matter to the Agency of Original Jurisdiction (AOJ) in order to complete additional necessary development without further delay. This appeal comes to the Board of Veterans’ Appeals (Board) from a March 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2014, the Board remanded this matter to the AOJ in order to provide the Veteran with a new VA examination in light of his claim that his back disability had worsened. In February 2015, the Board denied the Veteran’s claim, and the Veteran appealed to the United States Court of Appeals for Veterans Claims (CAVC). In October 2015, CAVC granted a Joint Motion for Remand (JMR) and remanded this matter to the Board for action consistent with the JMR. The JMR notes the prior VA examinations did not adequately explain why the examiners could not provide an estimate for functional loss due to flare-ups without resorting to speculation. In January 2016, the Board remanded this matter to the AOJ for action consistent with the JMR including affording the Veteran a new VA examination to reassess the functional limitations that the Veteran experiences during flare-ups based on the evidence of record to the extent possible. In April 2017 and November 2017, the Board observed that additional VA examinations were needed to include joint testing for pain on both active and passive motion consistent with 38 C.F.R. § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016), which was issued after the JMR. In March 2019, the Board remanded the matter once more because the examinations obtained by the AOJ still lacked the required testing under Correia, and the Board noted that the new examinations must also address the concerns in the JMR about assessing flare-ups based on a review of the record. The AOJ obtained another examination in August 2019 of the Veteran’s lumbar spine. The examiner noted the Board’s request that the examiner perform the testing required by Correia. The examiner indicated that testing passive range of motion of the spine was not performed as it is not feasible to do this in a safe and reasonable manner. The examiner noted that a non-weight bearing assessment is not applicable and that there is no objective evidence of pain when the spine is in a non-weight bearing position at rest. The examiner noted that the opposing joint assessment is not applicable because the spine does not have an opposing joint. While the August 2019 VA examiner’s opinion does provide a basis for the Board to conclude that additional testing under Correia is not feasible without harming the Veteran, the Board finds that the examiner’s assessment contains several flaws and does not address the specific concerns outlined in the JMR and the Board’s prior remand directives in regard to assessing flare-ups. Specifically, while many VA examiners have found the Veteran experienced additional functional limitations including work-related limitations as a result of flare-ups, the August 2019 examiner indicated that the Veteran did not experience flare-ups or work-related limitations (e.g. no heavy lifting). While the examiner may disagree with the assessments of earlier examiners, the basis for disagreement is not apparent from the examiner’s opinion. The examiner did not discuss pertinent evidence that the Veteran experienced flare-ups in the past and did not indicate that the absence of flare-ups during the August 2019 assessment was the result of medical improvement. Therefore, the same concerns that are raised in the JMR in regard to earlier VA examination findings apply to the August 2019 findings as the examiner did not explain why an assessment of the Veteran’s limitations resulting from flare-ups was not feasible based on a review of the record including earlier evidence supporting a finding of flareups. While the Board regrets the delay involved in remanding this matter once more to the AOJ, the need to obtain adequate VA examinations has been highlighted by CAVC, the Veteran, and the Veteran’s representative in multiple briefs over many years. Therefore, the AOJ must afford the Veteran a new examination of his lumbar spine on remand and ensure that the examiner addresses the concerns identified in this remand order before readjudicating the claim or returning the matter to the Board. Additionally, the Board observes that a very large volume of additional treatment records and other pertinent evidence has been received into the claims file since the AOJ last adjudicated this matter. The AOJ should ensure that the additional evidence is considered by the VA examiner, and the AOJ should readjudicate the Veteran’s claim considering the totality of the evidence in the first instance. The matters are REMANDED for the following action: 1. The AOJ should contact the Veteran and all current representatives and request their assistance in identifying any outstanding relevant records. The AOJ should make reasonable attempts to obtain all identified outstanding records and associate them with the Veteran’s claims file. 2. After associating all identified outstanding relevant records with the Veteran’s claims file, the AOJ should schedule the Veteran for an examination by an appropriate clinician to determine the severity of his service-connected lumbar spine disability throughout the period at issue. 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 to the extent that it is possible without harming the Veteran. 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. The examiner must describe the severity, frequency and duration of all symptomatology associated with the Veteran’s condition, including all associated neurologic manifestations. 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 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. The AOJ should review the VA examiner’s opinion and ensure that it is based on a review of the pertinent evidence of record include the treatment records and the Veteran’s lay statements about his limitations due to flare-ups. The AOJ should obtain addendum opinions as necessary to ensure the examination complies with the Board’s remand directives and the JMR instructions. 4. After completing the above action and any other necessary development, the claim must be readjudicated. If the claim remains denied, a Supplemental Statement of the Case must be provided to the Veteran and current representatives. After the Veteran has had adequate opportunity to respond, the appeal must be returned to the Board for appellate review. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Duffy, 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.