Citation Nr: 20050102 Decision Date: 07/28/20 Archive Date: 07/28/20 DOCKET NO. 10-26 271 DATE: July 28, 2020 REMANDED Entitlement to an initial rating greater than 10 percent for degenerative disc disease (DDD) and degenerative joint disease (DJD) of the lumbosacral spine prior to November 9, 2015, in excess of 20 percent prior to September 26, 2019, and in excess of 40 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1974 to January 1977. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2008 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, in a November 2015 rating decision, the AOJ increased the Veteran’s lumbar spine disability to 20 percent disabling, effective November 9, 2015. Further, in a June 2020 rating decision, the AOJ increased the Veteran’s lumbar spine disability to 40 percent disabling, effective September 26, 2019. The Board has recharacterized the issue as above in order to comport with those awards of benefits. In November 2018, the Board most recently remanded the issue below on appeal for further development, and the case has since been returned to the Board. The Board finds that the AOJ has not substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an initial rating greater than 10 percent for DDD and DJD of the lumbosacral spine prior to November 9, 2015, in excess of 20 percent prior to September 26, 2019, and in excess of 40 percent thereafter is remanded. The Board most recently remanded the issue on appeal in November 2018. In pertinent part, a lumbar examiner was ordered and the examiner was “reminded that should any additional functional impairment be noted during flare-up, repeated use, or due to pain, lack of endurance, incoordination, etc., the examiner should attempt, to the best of his/her ability, to estimate the additional functional loss in degrees. If additional functional loss cannot be estimated, the examiner must provide an explanation for the inability to provide such an estimation.” In the subsequent October 2019 VA Back Conditions examination, while the examiner noted the vet suffered from flare-ups in functional loss, he stated “Following further review of the Veteran’s records and giving consideration to their subjective complaints and objective exam findings, given my clinical knowledge and medical expertise, there remains no rational basis to make a notation regarding any additional losses of function or motion when it comes to repeated use over time.” The Board finds that this statement does not meet the previous remand requirements in that the examiner made no attempt to estimate the additional ROM loss nor does he offer an adequate explanation as to why that estimation could not be provided. Accordingly, a remand for an addendum examination and opinion is required. The matters are REMANDED for the following action: Return the Veteran’s claims file to the October 2019 VA examiner for an addendum examination regarding his original findings on the Veteran’s lumbar disability. If the October 2019 VA examiner is unavailable, the addendum examination should be rendered by another appropriate medical professional. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must be performed where possible. The lumbar spine should be tested for pain in both active and passive motion, in weightbearing and non-weightbearing. 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 examiner is further reminded that should any additional functional impairment be noted during flare-up, repeated use, or due to pain, lack of endurance, incoordination, etc., the examiner should attempt, to the best of his/her ability, to estimate the additional functional loss in degrees. If additional functional loss cannot be estimated, the examiner must provide an explanation for the inability to provide such an estimation. An explanation that the flare-up was not observed, standing alone, is not   adequate. All opinions must be accompanied by a clear rationale. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.A. Elliott II, 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.