Citation Nr: 20034068 Decision Date: 05/15/20 Archive Date: 05/15/20 DOCKET NO. 15-17 239 DATE: May 15, 2020 REMANDED The claim of entitlement to an evaluation in excess of 20 percent for a lumbosacral strain disability (previously rated with scoliosis and lumbar stenosis with five mm anterolisthesis L4, spondylosis L4 and L5, disc degeneration L4-L5) is remanded. REASONS FOR REMAND The Veteran served in the U.S. Air Force from May 1976 to April 1980. The Veteran contends that he is entitled to an evaluation in excess of 20 percent for a lumbosacral strain disability. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement (NOD) in September 2014. A statement of the case (SOC) was issued in October 2014, and the Veteran perfected his appeal in May 2015. In August 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). However, according to a March 2020 letter, VA was unable to produce a transcript of the proceeding due to audio malfunctions in the Digital Audio Recording System (DARS). The Board offered the Veteran an opportunity to testify at another hearing per 38 C.F.R. § 20.717, but the Veteran declined. Increased Rating for a Lumbosacral Strain Disability The Veteran contends that he is entitled to an evaluation in excess of 20 percent for a lumbosacral strain disability. In the July 2014 rating decision currently on appeal, the RO denied the Veteran’s claim for an evaluation in excess of 20 percent for a lumbosacral strain disability. The Board finds that additional development is necessary prior to adjudication of the Veteran’s claim. The law provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence to substantiate a claim. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2018). Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). If a medical examination report does not contain sufficient information to allow an informed Board decision, then the rating board must return the report as inadequate. See 38 C.F.R. § 4.2 (2018); Bowling v. Principi, 15 Vet. App. 1, 12 (2001); Ardison v. Brown,6 Vet. App. 405, 407 (1994). Once VA undertakes to provide a medical examination, VA must provide an adequate examination or, at a minimum, notify the claimant why one will not or cannot be provided. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). An examination “is adequate where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.’” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994)); Green v. Derwinski, 1 Vet. App. 121, 124 (1991); D’Aries v. Peake, 22 Vet. App. 97, 104 (2008); Nieves–Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (“[A] medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.”). In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 (2017) requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Therefore, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. The Veteran was afforded VA examinations for his back disability in April 2014 and November 2016. However, the VA examination reports of record did not address pain on both active and passive motion, nor did they address pain in nonweight-bearing. Furthermore, at the November 2016 examination, the VA examiner noted that the Veteran was not being examined immediately after repetitive use over time. The examiner gave no further description of the impact of repeated use over time other than to say that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. When asked whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time, the examiner only answered that she was unable to say without mere speculation because the Veteran was not examined after repetitive use over time. Similarly, although the November 2016 VA examiner reported that the Veteran suffered from flare-ups, the VA examiner noted that the Veteran was not being examined during a flare-up. The examiner stated that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-ups. When asked whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over a period of time, the examiner only answered that she was unable to say without mere speculation because the Veteran was not examined during a flare-up. Therefore, in light of the above, the Board finds that remand is necessary in order to obtain a new VA examination for the Veteran’s lumbosacral strain disability that complies with the requirements of Correia and 38 C.F.R. § 4.59 and that adequately addresses the current status and severity of the Veteran’s lumbosacral strain disability. 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158 (2016); Sharp v. Shulkin, 29 Vet. App. 26 (2017). Accordingly, the matters are REMANDED for the following action: Ensure that the Veteran is scheduled for an appropriate VA examination to determine the current status and extent of the Veteran’s service-connected lumbosacral strain (back) disability. The examination should be conducted by a VA examiner who has not previously examined the Veteran, and the examiner must review the claims file in conjunction with the examination. The examiner should describe the nature and severity of all manifestations of the Veteran’s back disability. In this regard, the examiner should record the range of motion observed on clinical evaluation, in terms of degrees of flexion and extension. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree of flexion and/or extension at which such pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner is reminded that he or she should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. Additionally, the examiner must comment on the functional impairment caused by the Veteran’s back disability. The examiner should describe what, if any, impact the Veteran’s back disability has on his ability to work or perform occupational tasks. In order to comply with the Court’s decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the examiner must test the range of motion on active motion and passive motion, as well as in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The Veteran has reported that he suffers flare-ups of his back symptoms, the examiner must provide an opinion, including additional loss of range of motion, as to additional impairment during a flareup. If the examiner determines that the Veteran is not currently suffering from a flare-up of any conditions, the examiner must also ascertain adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding flare-ups by alternative means. The examiner must offer an estimate as to additional functional loss during flare-ups regardless of whether the Veteran is undergoing a flare-up at the time. If the examiner determines that a requested opinion cannot be rendered without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Sharp v. Shulkin, 29 Vet. App. 26 (2017). (Continued on the next page)   The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.