Citation Nr: 21004715 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-01 122 DATE: January 28, 2021 ISSUE Entitlement to a disability rating in excess of 20 percent for degenerative arthritis of the spine and spinal stenosis, exclusive of the period from December 10, 2014, to February 1, 2015 (previously rated as lumbar spine myofascial pain syndrome, L2-3 radiculopathy) (back disability). REMANDED Entitlement to a disability rating in excess of 20 percent for the back disability is remanded. REASONS FOR REMAND The Veteran had active service from June 1965 to January 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).  When this case was previously before the Board in October 2018, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. Subsequently in a June 2020 rating decision, the evaluation of the back disability was increased to 100 percent effective December 10, 2014, and a 20 percent disability rating was continued from February 1, 2015. Such period of a 100 percent rating is a full grant of the benefits sought, and therefore, this period is not before the Board on appeal. In response to the Board’s remand, the Veteran was afforded a VA examination in August 2019 in which he reported pain that was aggravated by prolonged bedrest, sitting, standing, walking, bending or twisting, lifting, carrying, pushing or pulling, going up/down stairs, getting out of the car, during early morning hours along with stiffness, and with cold/rainy weather. He also reported that he could not run or jump. Physical examination showed pain in forward flexion, extension, right lateral flexion, left lateral flexion, right lateral rotation, and left lateral rotation; however, range of motion in degrees was not provided.    In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) noted the final sentence of § 4.59, which states “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” The Court found this sentence to be ambiguous because the regulation, considered as a whole, is meant to guide adjudicators in determining the proper level of disability of joints, and if the range of motion testing listed in the last sentence is not required, it is unclear how an adjudicator could adequately rate a claimant’s joint disability and account for painful motion. However, compelled by § 4.59’s place in the regulatory scheme (it preceded the disability rating schedule), the Court held that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities.     As also relevant, a more recent Court decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id.     As the August 2019 examination report did not provide all of the information specified by Correia and Sharp, the claim must be remanded for new VA examination to obtain the information necessary to properly adjudicate this claim.     The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the manifestations of the service-connected back disability.   The electronic record, to include a copy of this remand, must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Ensure that the examiner provides all information required for rating purposes.   The examiner should: Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran’s disability, i.e., the extent of the Veteran’s pain-free motion.     Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), please record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on “weight-bearing,” please specifically indicate why that testing cannot be done.   Pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner(s) is instructed to inquire whether there are periods of flare-ups. If the answer is “yes,” the examiner should state their severity, frequency, and duration explaining if there are any additional or increased symptoms and limitations experienced during flares. The examiner(s) must ALSO name the precipitating and alleviating factors. The examiner(s) must ALSO estimate, “per [the] veteran,” to what extent, if any, they affect functional impairment.   All opinions provided must be thoroughly explained, and an adequate rationale for any conclusions reached should be provided.     2. Then, after undertaking any additional development that is deemed warranted, readjudicate the claim on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand.   If the decision remains adverse to the Veteran, he and his representative should be furnished an supplemental statement of the case and afforded an appropriate period of time within which to respond thereto.  MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.