Citation Nr: 20052003 Decision Date: 08/05/20 Archive Date: 08/05/20 DOCKET NO. 11-01 995 DATE: August 5, 2020 REMANDED Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2006 to November 2009. He was awarded the Combat Action Badge. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2010 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Board previously considered this appeal in August 2015 and remanded this issue for further development including scheduling a VA examination. In June 2016, the Board granted entitlement to an initial rating of 20 percent, but no higher, for the degenerative disc disease of the lumbar spine. The Veteran subsequently appealed the June 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). In February 2018, the Court issued a Memorandum Decision that vacated the Board’s June 2016 decision except to the extent it made a favorable determination to grant a 20 percent rating and remanded the matter to the Board. Thereafter, the Board remanded the case in December 2018 for additional development, including AOJ consideration of new evidence submitted by the Veteran and scheduling of another VA examination, which occurred in November 2019 with a subsequent addendum in April 2020. The Board finds that substantial compliance with its remand directives has not occurred. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbar spine The Veteran seeks an initial rating in excess of 20 percent for his service-connected degenerative disc disease of the lumbar spine based upon functional loss due to increased pain and incapacitating episodes. The Veteran’s degenerative disc disease of the lumbar spine is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. In December 2018 the Board remanded the issue on appeal, in accordance with the CAVC’s memorandum decision, in order to obtain additional VA examination and medical opinion. The Veteran was afforded a VA examination for the back in November 2019. The Veteran reported that he continues to have low back pain on both sides of low back, constant daily usually a 4/10 (pain scale) will have flares 2 times per month lasting 2-3 days, will miss work or do light duty at work, rates pain with flare ups at 7-9 on 0-10 pain scale. Reported worst flare up in 2015, could not walk due to pain in low back had to call 911 and go by ambulance to ER, had pain and muscle relaxers given will uses TENS unit with flare, ice and pain medication, aggravated by walking or standing prolonged periods, does stretching every morning to loosen up and then at end of day, pain increases. He reported pain shoots down the left lower extremity 1-2 times that did not recur, pain in low back dull achy sharp varies. He described functional loss as bending prolonged standing or walking. On initial range of motion testing of the thoracolumbar spine, he had flexion to 60 degrees, extension to 15 degrees, lateral flexion to 20 degrees bilaterally, and lateral rotation to 20 degrees bilaterally. The examiner noted an abnormal or outside normal range that contributes to functional loss as bending. All ROM exhibited pain and causes functional loss. The examiner noted that there is no objective evidence of pain with weight bearing. There is evidence of localized tenderness on palpation at right and left SI. The Veteran was able to perform repetitive use testing with no additional loss of function. The examination was not conducted during a flare-up; however, the examiner noted that it was medically consistent with the Veteran’s statements describing functional loss. Additional factors contributing to disability were described as “less movement than normal due to ankylosis, adhesions, etc., disturbance of locomotion, Interference with standing.” Normal muscle strength, no muscle atrophy, normal tendon reflexes, no radiculopathy, no ankylosis, no other neurologic abnormalities. The examiner noted that the Veteran has IVDS, with no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Regarding testing pain on passive range of motion and pain when used in non-weight bearing the examiner merely noted “Cannot be performed” without providing any further explanation as to why such testing could not be performed. The agency of original jurisdiction (AOJ) requested an addendum opinion in April 2020. In response to VA’s request, the examiner clarified on repetitive use and joint ROM, that “[a]ny repetitive use is not always of the same duration of time. Repetitive use over a few minutes may result in a smaller loss of range of motion. Repetitive use over a half hour or hour would result in a great loss of range of motion. It was not possible to determine from the history a specific numerical loss of range of motion during repetitive use. This is not due to a limitation of the examiner's personal knowledge, but to the current limits of medical knowledge and scientific evidence based medical practice.” On flare-ups and joint ROM, the examiner clarified that “It is not possible to provide degrees of additional ROM loss as flare ups vary and are not always of the same intensity. Flare ups range from a mild to severe magnitude with a corresponding difference in additional of ROM loss. Theoretically a very mild flare up may not reduce range of motion at all while an extremely severe flare up may prevent any movement whatsoever. It was not possible to determine from the history a specific numerical loss of range of motion during flare-ups. This is not due to a limitation of the examiner's personal knowledge, but to the current limits of medical knowledge and scientific evidence based medical practice.” In Correia v. McDonald, the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing." Correia v. McDonald, 28 Vet. App. 158 (2016). The Board notes that while much of the examination report is adequate and in compliance with governing legal criteria, the examination report does not contain passive range of motion measurements pursuant to the CAVC’s directives in Correia, supra. Significantly, the Secretary and the Veteran’s representative agreed that the prior decisions had not complied with Correia. The February 2018 memorandum decision that vacated and remanded the case noted that “The Secretary concedes error in this regard and agrees that an adequate VA examination must be obtained ‘that adheres to 4.59, considers Appellant’s medical history, and describe[s] his disability in sufficient detail to allow for a fully-informed decision.” Remand is needed for a new VA examination with more thorough findings in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing (if applicable) and, if possible, with the range of the opposite undamaged joint). The examiner should also ensure continued compliance with the guidance in Sharp v. Shulkin, 29 Vet. App. 26 (2017) (outlining VA examiners' obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups). Although the Board sincerely regrets the additional delay, another remand is necessary to ensure compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current severity of the Veteran’s degenerative disc disease of the lumbar spine. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If such testing cannot be performed the examiner must provide the reasons why such testing cannot be performed. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar spine disability alone and discuss the effect of the Veteran's low back 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, 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). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Romero-Sanchez, 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.