Citation Nr: 21001614 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 12-03 618 DATE: January 11, 2021 REMANDED The issue of entitlement to an initial rating greater than 20 percent for degenerative joint disease of the lumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1976 to February 1980. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision. In the March 2010 rating decision on appeal, the Agency of Original Jurisdiction (AOJ) awarded service connection for degenerative changes of the thoracolumbar spine (“back disability”), with a 10 percent rating, effective August 31, 2009. In an October 2017 rating decision, the rating was increased to 20 percent effective May 24, 2017, and, in an August 2020 rating decision, the rating was increased to 20 percent effective August 31, 2009. In September 2014, April 2017, April 2018, and November 2019, the Board remanded this appeal for further development. Although the Board sincerely regrets the additional delay, further development is needed. In its April 2018 remand, the Board directed the VA examiner to conduct both active and passive range of motion (ROM) testing, in compliance with Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The Veteran was afforded VA back conditions examinations in July 2019 and January 2020. The July 2019 VA examiner stated, when asked whether there was evidence of pain on passive ROM testing, that such testing could not be performed or was not medically appropriate, because the spine has no contralateral joint. The January 2020 VA examiner stated, in response to the same question, that such testing could not be performed due to the nature of spine anatomy. However, passive ROM testing was conducted by a May 2017 VA back conditions examiner, and the 2019 and 2020 VA examiners did not reconcile their conclusions with the 2017 findings or explain why the anatomy of the spine and/or lack of a contralateral joint prevented passive ROM testing. On remand, an examination report that includes passive ROM testing, or reconciles the conclusion that it cannot be performed with the findings of the May 2017 VA examiner, must be obtained. Ongoing VA treatment records should also be obtained. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from July 2020 to the present. 2. Schedule the Veteran for a VA examination with an appropriate professional to determine the severity of his service-connected back disability. If an in-person examination is not feasible, send the claims file to an appropriate clinician to respond to the below inquiry regarding passive ROM testing of the spine. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner should test the Veteran’s active motion and passive motion. If it is not possible to test passive ROM, the examiner must explain why, reconciling that finding with the findings of the May 2017 VA back conditions examiner and addressing why a contralateral joint is required to conduct passive ROM testing. The examiner should also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner should 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). L. STEPANICK Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.