Citation Nr: 20043746 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 18-12 393 DATE: June 29, 2020 REMANDED Entitlement to a disability rating in excess of 10 percent prior to January 27, 2020 and a rating in excess of 20 percent from January 27, 2020 for the service-connected lumbosacral degenerative arthritis with strain is remanded. REASONS FOR REMAND The Veteran had active service from February 1964 to February 1984. In March 2019, he testified at a video-conference hearing before the undersigned Veterans Law Judge at the Board of Veterans’ Appeals (Board). A transcript of that hearing has been associated with the claims file. In June 2019, this case was remanded for additional development. Although most of the remand directives were satisfied, including the procurement of outstanding VA treatment records and scheduling the Veteran for a January 2020 VA examination, there are some pertinent questions that were not addressed by the examiner. It is also necessary for the examiner to clarify some information provided on the examination report. As such, the Board will regrettably have to remand this case again. In an April 2020 rating decision, the Regional Office (RO) increased the Veteran’s evaluation for his lumbosacral degenerative arthritis with strain from 10 percent to 20 percent, effective January 27, 2020. As the currently assigned 20 percent rating is less than the maximum available rating that can be awarded and as the Veteran has not withdrawn his appeal, the entire issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993) (indicating that a Veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise). Increased rating for lumbosacral degenerative arthritis with strain The Veteran contends that he should be assigned a higher rating for his low back disability. As previously stated, he was afforded a VA examination for this disability in January 2020. However, due to some deficiencies at this examination, which are explained below, the Board concludes that another remand is necessary. In the June 2019 Board remand, the examiner was asked to conduct complete range of motion testing and note the point at which there is pain on motion and to indicate how far back in time these results would apply, if possible, or provide an explanation if this could not be done. While range of motion testing results were provided at the January 2020 VA examination, the examiner did not state whether it was possible to indicate how far back in time these results would apply. A response to this question from the examiner would greatly assist in determining whether the Veteran should be assigned a higher disability rating prior to January 27, 2020. Also, at this examination, the Veteran reported having continuous and severe flare-ups of his back, which occur almost daily. See January 2020 VA examination report. He reported that the flare-ups are precipitated by movement of his back and are alleviated by continuous rest. Id. However, although requested in the June 2019 Board remand, the examination was not conducted during a flare-up, but the examiner concluded that pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups. With regard to the inability to test passive movement of the back, the examiner remarked that the spine cannot be tested through the examiner alone. It is necessary for the examiner to clarify what is meant by that statement. It would appear that additional resources, if available, could assist the examiner with testing passive movement of the back. Consequently, the Board must remand this case for the RO to schedule the Veteran for another VA examination to address the above noted deficiencies in the January 2020 VA examination report. This matter is therefore REMANDED for the following action: Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected lumbosacral degenerative arthritis with strain. The claims file, including this remand, should be reviewed by the examiner, and such review should be noted in the examination report. All pathology associated with this service-connected disability should be discussed. In particular, the examiner is asked to: a. Conduct complete range of motion testing and note the point at which there is pain on motion, if any. Active and passive range of motion testing as well as weight-bearing and nonweight-bearing testing must be conducted if applicable. If possible, the examiner should indicate how far back in time these results would apply. If any test is not deemed warranted, such should be identified and explained. b. Note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed in degrees. c. If flare-ups are reported, the examiner must express an opinion as to whether the flare-ups are associated with additional functional loss. If so, he or she should estimate the degree of lost motion during such flare-ups. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he/she should clearly explain why that is so. d. Determine whether there are any associated objective neurological abnormalities related to this low back disability, including radiculopathy or IVDS. If the examiner concludes that a particular test cannot be done through the examiner alone, as noted on the January 2020 examination report, he/she should indicate whether that test could be done with additional resources, if available, and state what are those additional resources. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Trowers, 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.