Citation Nr: 21001418
Decision Date: 01/08/21	Archive Date: 01/08/21

DOCKET NO. 18-49 417
DATE: January 8, 2021

REMANDED

The claim for an initial rating in excess of 10 percent for degenerative arthritis of the lumbar spine (back disability) is remanded.

REASONS FOR REMAND

The Veteran served on active duty in the U.S. Army from May 1970 to January 1972.  The matter is on appeal from a November 2014 rating decision.  In August 2019, the Board denied the Veteran an initial rating in excess of 10 percent for a back disability.  The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court).  In August 2020, the Court issued a Joint Motion for Remand (JMR), in which the August 2019 Board decision was vacated, and the issue was remanded for further development.   

In the August 2020 JMR, the Court noted that the October 2016 VA examiner did not adequately discuss the Veteran’s report of flare-ups.  The examiner reported “there really is no way to predict functional ability during a flare-up when it is not witnessed.  This would be subjective, presumptive and speculative at best and an opinion is not feasible and cannot be rendered.”  The Court described the examiner’s explanation as “akin to the explanation rejected in Sharp.”  See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017).  As such, the Court found that the examiner failed to adequately explain the basis for the conclusion that a non-speculative opinion cannot be offered.  See Sharp, 29 Vet. App. at 35.  The Board was directed that on remand it should (1) order a new examination with instruction to elicit and document information from the Veteran regarding his flare-ups; and (2) either estimate the Veteran’s functional loss due to flare-ups based upon this information or provide an adequate explanation of the basis for a conclusion that a non-speculative opinion cannot be offered.  Accordingly, a remand is warranted to provide the Veteran with a new examination.

The matters are REMANDED for the following action:

Schedule the Veteran for a VA examination to determine the current severity of his back disability.  

While providing the Veteran with a full comprehensive VA back examination, in accordance with the findings from the Court, the examiner is specifically instructed to elicit and document information from the Veteran regarding his flare-ups; and either estimate the Veteran’s functional loss due to flare-ups based upon this information or provide an adequate explanation of the basis for a conclusion that a non-speculative opinion cannot be offered.  See August 2020 JMR at 3.

In providing the opinion, the examiner should review the August 2020 JMR for an explanation as to why the 2016 VA examination was found to be inadequate.

 

 

MATTHEW W. BLACKWELDER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	S. Lutgens-Staley, 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.