Citation Nr: 21003160
Decision Date: 01/19/21	Archive Date: 01/19/21

DOCKET NO. 190403-7931
DATE: January 19, 2021

REMANDED

Entitlement to an increased disability rating in excess of 10 percent from January 11, 2019 for intervertebral disc syndrome (IVDS) in the lumbar spine status post sacral fracture (back disability), hereinafter referred to as a spine disability, is remanded.

REASONS FOR REMAND

The issue of a rating in excess of 10 percent from January 11, 2019 for the back disability is remanded.

The Veteran served on active duty in the United States Marines from December 1979 to June 1987. 

The instant claim for increased rating that was received on January 11, 2019. In a March 2019 AOJ Decision, the agency of original jurisdiction (AOJ), also known as the Regional Office, denied an increased rating in excess of 10 percent. On April 3, 2019, the Veteran timely appealed this rating decision, requesting Direct Review by the Board. 

This matter was previously before the Board in November 2019. The Board denied the claim for increased rating in excess of 10 percent from January 11, 2019 for the spine disability. The Veteran appealed the November 2019 Board Decision to the U.S. Court of Appeals for Veterans Claims (CAVC).     

An August 2020 Order by CAVC adopted a Joint Motion for Remand (JMR) filed by the parties. The parties agreed that the November 2019 Board decision relied on evidence from an inadequate January 2019 VA examination. The parties agreed that the January 2019 VA examination did not measure limitations in range of motion due to flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017) (stating that an examination does not need to be conducted during a flare-up, but that the examiner should, if possible, estimate the functional impairment experienced  during  a  flare-up,  considering  all  procurable  evidence  of  functional loss that is available); Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011) (holding that when “pain is associated with movement... the medical  examiner  must  be  asked  to  express  an  opinion  on  whether  pain  could  significantly limit functional abilities,” and such determinations should, “if feasible, be ‘portray[ed]’... in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups”). For this reason, a remand is warranted for addendum opinions to help assess additional functional limitations and limitations of motion during flare ups of pain. 

The matter is REMANDED for the following action:

Send the January 2019 VA examination report to a VA examiner of an addendum opinion. Examination of the Veteran is not required unless the examiner determines that an examination is necessary to provide a reliable opinion. The VA examiner should address the following:

Estimate the functional loss in the lumbar spine, to include additional loss of range of motion, due to (during) flare-ups based upon all the evidence of record, including lay reports from the Veteran. 

In rendering the above opinion, the VA examiner is to assume that the Veteran has some functional loss during a flare-up, with the remaining question as to the extent of the functional limitation and limitation of motion during the flare-ups. The VA examiner should attempt to quantify the functional loss, to include loss of range of motion, even if such functional loss is minimal in severity. 

.

 

 

J. PARKER

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	D. Costantino, 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.