Citation Nr: 20059080 Decision Date: 09/09/20 Archive Date: 09/09/20 DOCKET NO. 18-22 240 DATE: September 9, 2020 REMANDED Entitlement to a disability rating in excess of 20 percent for lumbosacral strain with degenerative disc disease/degenerative arthritis of the lumbar spine (hereinafter “lumbar spine disability”) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from July 1978 to August 1999. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The RO, in pertinent part, denied a rating in excess of 20 percent for the Veteran’s lumbar spine disability. This case was previously before the Board in November 2018, when it was remanded to the agency of original jurisdiction (AOJ) for additional development, to include a new examination. After taking further action, the AOJ confirmed and continued the prior 20 percent rating and returned the case to the Board. Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim and to afford him every possible consideration. Entitlement to a rating in excess of 20 percent for lumbar spine disability. After this case was remanded in November 2018, evidence was added to the record indicating that the Veteran sustained a back injury and whiplash in a September 2018 rear-end accident, and that he completed physical therapy. Records of the treatment the Veteran underwent in connection with that accident do not appear in the claims file. Because such records, if obtained, could bear on the outcome of his appeal, efforts must be made to procure them. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Pursuant to the Board’s November 2018 remand, the Veteran underwent a VA compensation examination of his back in September 2019. The examiner indicated that the Veteran exhibited 35 degrees of flexion in his thoracolumbar spine after rest and three repetitions. However, he also noted that repeated use over time and flare-ups would “significantly” limit functional ability. He declined to express any additional limitation in terms of degrees of range of motion, noting, in part, “no specific degrees of limitation were possible to be provided by the Veteran.” Governing law does not require that estimates of functional ability be precise. Rather, all that is required is that the examiner exercise his or her medical judgment, based on all that is known, to provide an estimate. Because it is not clear that the examiner applied that principle as intended, and may have also taken in account the ameliorative effects of medication, an addendum opinion is warranted. This matter is REMANDED for the following action: 1. Ask the Veteran to provide a release for the records of any treatment he received in connection with the reported rear-end accident in which he was reportedly involved in September 2018, to include any associated records of physical therapy, and to identify, and provide appropriate releases for, any other care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, make arrangements to provide the record on appeal to the VA examiner who previously evaluated the Veteran’s thoracolumbar spine in September 2019. The examiner should be asked to review the expanded record and prepare a supplemental report indicating whether, when discounting the ameliorative effects of medication, it is at least as likely as not (i.e., whether it is 50 percent or more probable) that with repeated use over time, and/or during flare-ups, the Veteran’s forward flexion is limited to 30 degrees or less. If the September 2019 examiner is no longer employed by VA, or is otherwise unable to provide the opinion requested, arrange to obtain the requested information from another qualified examiner. The need for another examination and/or telephonic or video interview of the Veteran is left to the discretion of the examiner selected to offer the requested opinion. A complete rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If the benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Willis, 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.