Citation Nr: 21000730 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 16-39 449 DATE: January 6, 2021 REMANDED Entitlement to a rating in excess of 10 percent for service-connected chronic lumbar strain is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected pes planus is remanded. REASONS FOR REMAND The Veteran served on active duty from November 1993 to March 2005. In April 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In September 2019, this appeal was remanded in order to afford the Veteran with updated VA examinations. Although VA examinations, with respect to the disabilities on appeal, were conducted in December 2020, the Veteran’s representative argues that these examinations are inadequate, as they do not accurately represent the state of the Veteran’s disabilities on appeal. Upon review of the December 2020 VA examination report for a back condition, the VA examiner noted that the Veteran refused to conduct range of motion testing. However, the Veteran’s representative argues that the Veteran never refused to conduct the range of motion testing; rather, he was unable to conduct the range of motion activities due to his back pain. The Board notes that this reason is not reflected in the December 2020 VA examination report. Additionally, in a July 2020 Statement in Support of Claim, the Veteran also stated that due to his immense pain as a result of a flare up, he was unable to bend his back on the date of the examination. Similarly, the Veteran’s statements are not included in the December 2020 VA examination report. Upon review of the December 2020 VA examination report for foot conditions, the VA examiner noted that the Veteran did not report any pain associated with his feet. The VA examiner also noted that the Veteran did not report any functional loss or impairment associated with his feet. However, later in the examination report, the VA examiner noted that the Veteran does report pain in his feet. As such, the Veteran’s representative and the Veteran contend that there are internal inconsistencies within the VA examiner’s report. Given such, the Board finds that it is unclear if the Veteran’s current disability picture is accurately represented in the December 2020 VA examination reports. Consequently, the Board finds that new VA examinations are required. The matters are REMANDED for the following action: 1. Schedule, the Veteran for a VA medical examination, with a different examiner, to clarify the severity of his chronic lumbar strain, with an orthopedic doctor (if available). Access to the Veteran’s electronic claims file should be made available to the examiner for review in connection with the examination. The examination report should include the range of motion of the spine in degrees. The examiner must, to the extent practicable, specifically measure both active and passive range of motion, in weight-bearing and nonweight-bearing, as required by 38 C.F.R. § 4.59. If any such testing cannot be performed on the joint at issue, the examiner should specifically state so and provide an explanation in the report. Additionally, the examiner should comment on the extent of any functional impairment resulting from painful motion, weakness, fatigability, and incoordination in relation to the Veteran’s back disability. If feasible, this determination should be expressed in terms of the DEGREE OF ADDITIONAL RANGE OF MOTION LOSS due to any weakened movement, excess fatigability, or incoordination. The examiner should also, to the extent possible, provide a RETROSPECTIVE OPINION addressing additional loss of motion after repetitions, and function loss due to pain - considering active and passive motion as well as weight-bearing and nonweight-bearing considerations - throughout the claims period. If, the examiner is unable to provide a retrospective opinion, the examiner MUST provide a thorough rationale explaining why such opinion is not provided in this examination. As to the Veteran’s chronic lumbar strain, the examiner shall inquire as to periods of flare-up, and note the frequency, severity, and duration of any such flare-ups. ANY ADDITIONAL IMPAIRMENT ON USE OR IN CONNECTION WITH FLARE-UPS SHOULD BE DESCRIBED IN TERMS OF THE DEGREE OF ADDITIONAL RANGE OF MOTION LOSS. THE EXAMINER SHOULD SPECIFICALLY DESCRIBE THE SEVERITY, FREQUENCY, AND DURATION OF FLARE-UPS; NAME THE PRECIPITATING AND ALLEVIATING FACTORS; AND ESTIMATE, PER THE VETERAN, TO WHAT EXTENT, IF ANY, SUCH FLARE-UPS AFFECT FUNCTIONAL IMPAIRMENT. 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 examination report should also identify all neurological manifestations of the Veteran’s spine, if any. IF THE VETERAN IS UNABLE TO PERFORM RANGE OF MOTION TESTING, THIS SHALL BE NOTED IN THE EXAMINATION REPORT AND WHY. 2. Schedule the Veteran for a VA examination to ascertain the severity of his service-connected pes planus, with a podiatrist (if available). The examiner should review the claims file. The examiner should specifically have the Veteran provide a full account of his symptoms. After examining the Veteran and conducting any studies and/or tests deemed necessary, the examiner should fully describe all symptomatology and functional deficits associated with this condition. (Continued on the next page)   Any opinion expressed by the VA examiner must “contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Abdelbary, 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.