Citation Nr: 20041763 Decision Date: 06/18/20 Archive Date: 06/18/20 DOCKET NO. 12-28 074 DATE: June 18, 2020 REMANDED Entitlement to a rating higher than 10 percent for service-connected lumbar spine disability for the period prior to December 10, 2015 is remanded. Entitlement to a rating higher than 20 percent for service-connected lumbar spine disability for the period from December 10, 2015 to October 31, 2016 is remanded. Entitlement to a rating higher than 40 percent for service-connected lumbar spine disability for the period beginning November 1, 2016 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from July 2003 to July 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans’ Affairs (VA) Regional Office (RO) which denied the Veteran’s claim for an increased rating for service-connected lumbar spine disability. The Veteran disagreed with that decision and perfected this appeal. Most recently, this claim was before the Board in March 2018, at which time, the Board denied increased staged ratings for the Veteran’s lumbar spine disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In November 2019, the Court issued a Memorandum Decision, vacating the Board’s March 2018 decision and remanding the claims for further development. The Court held that a remand is required for the Board to address deficiencies regarding the adequacy of the VA examination reports upon which the denial was based, and to provide an adequate statement of reasons and bases for any conclusion reached. The matters are REMANDED for the following action: 1. Associate with the claims folder updated VA treatment records. 2. Schedule the Veteran for an examination to assess the current severity of his lumbar spine disability. The entire claims file, to include a copy of this remand, should be provided to the examiner for review. (a.) 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 after repeated use over time, and the degree of functional loss during flare-ups and after repeated use over time. (b.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the disability alone and discuss the effect of the Veteran’s disability 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 and after 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). (c)The examiner should also provide retrospective medical findings on the Veteran’s range of motion of his lumbar spine throughout the time period of the claim (VA examinations conducted from February 2012 onward involving the lumbar spine). That is, with consideration of the evidence of record and his history of lumbar spine complaints, provide estimates of specific measurements for the historical severity of the Veteran’s range of motion testing on both active and passive motion and in weight-bearing and non-weight-bearing. If it is not possible to provide specific measurements or an opinion 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). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Orie, 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.