Citation Nr: 20033043 Decision Date: 05/12/20 Archive Date: 05/12/20 DOCKET NO. 14-08 220 DATE: May 12, 2020 REMANDED Entitlement to an increased evaluation in excess of 10 percent for lumbar spine degenerative joint disease (DJD) for the period prior to July 17, 2017, is remanded. Entitlement to an increased evaluation in excess of 20 percent for lumbar spine DJD for the period from July 17, 2017, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from September 1967 to June 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) located in Denver, Colorado. In a March 2019 decision, the Board denied the claims on appeal. The Veteran appealed the March 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In February 2020, the Court granted a January 2020 Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA Office of the General Counsel), thereby vacating the March 2019 Board decision and remanding the matter for readjudication. 1. Entitlement to an increased evaluation in excess of 10 percent for lumbar spine DJD, prior to July 17, 2017, is remanded. 2. Entitlement to an increased evaluation in excess of 20 percent for lumbar spine DJD, from July 17, 2017, is remanded. The Veteran seeks an increased rating in excess of 10 percent for lumbar spine DJD for the period prior to July 17, 2017, and in excess of 20 percent for the period from July 17, 2017. The January 2020 JMPR reflects that the parties agreed that the November 2018 VA back conditions examination was inadequate. Specifically, the parties noted that, while the November 2018 examiner noted that the Veteran’s flare-ups caused additional functional loss, the examiner failed to provide range of motion estimates during flare-ups or provide an adequate explanation for why such estimates could not be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The parties also agreed that the VA examiner’s findings with respect to the Veteran’s back condition after repetitive use were internally inconsistent because the examiner stated that “there is a varying loss during repeated use over time” while also stating there was no additional functional loss. The January 2020 JMPR reflects that the parties further agreed that the Board failed to provide an adequate statement of reasons or bases because it failed to discuss favorable evidence in finding that a separate rating for radiculopathy was not warranted during either evaluation period. It was explained that although the Board found that a separate rating for radiculopathy was not warranted, it failed to address an August 2012 VA treatment record (noting that the Veteran reported muscle weakness of the legs and hands that began five years earlier), an August 2014 statement (noting the Veteran reported that his physical therapist was concerned about his losing feeling in his leg and falling down, which happened two times in the last three months.), and the November 2018 VA examination report (noting that the Veteran experienced weakness in his back that made his leg feel weak, as well as pain that extended into his buttocks but not into his legs bilaterally). Based on the foregoing, and pursuant to the January 2020 JMPR, the Board finds that a remand is necessary in order to schedule the Veteran for a new VA examination that complies with the holding in Sharp, and obtain an opinion as to whether the Veteran has any objective neurologic abnormalities associated with his lumbar spine DJD. VA treatment records to October 2019 have been associated with the claims file. Upon remand, the Agency of Original Jurisdiction (AOJ) should attempt to obtain all relevant VA treatment records dated from October 2019 to the present, while the claim is in remand status. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matter is REMANDED for the following action: 1. Obtain VA treatment records from October 2019 to the present. 2. Schedule the Veteran for a VA examination of his lumbar spine. The examiner should provide a full description of the Veteran’s associated functional impairments as they relate to the relevant rating criteria. The examination must include testing for pain on both active and passive motion, and in weight bearing and non-weight bearing, if possible. If such testing is not feasible, the examiner should explain why. The examiner must attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran’s competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner’s conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. In so doing, the examiner should explain whether the inability to provide a more definitive opinion is the result of the need for additional information, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to a particular question The above-referenced examiner is also requested to provide an opinion as to whether it is at least as likely as not (i.e., 50 percent or more probable) that the Veteran has any objective neurologic abnormalities associated with his lumbar spine DJD. In providing this opinion, the examiner should address the significance of the August 2012 VA treatment record (noting that the Veteran reported muscle weakness of the legs and hands that began five years earlier), the August 2014 statement (noting the Veteran’s report that his physical therapist was concerned about his losing feeling in his leg and falling down, which had happened two times in the past three months), and the November 2018 VA examination report (noting that the Veteran experienced weakness in his back that made his leg feel weak, as well as pain that extended into his buttocks but not into his legs bilaterally). The examiner should provide a complete rationale for all opinions expressed and conclusions reached. Scott Shoreman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Ragheb, 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.