Citation Nr: 21061656 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 17-28 332 DATE: October 4, 2021 REMANDED Entitlement to a rating in excess of 10 percent for lumbosacral strain is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1996 to January 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2015 rating decision of the Columbia, South Carolina. In July 2021, the Veteran testified at a virtual hearing conducted with the undersigned Veterans Law Judge. A transcript of the hearing is of record. Entitlement to a rating in excess of 10 percent for lumbosacral strain The Veteran's last VA examination for his back was in February 2020. However, at the July 2021 Board hearing, the Veteran alleged that his disability had worsened. Specifically, the Veteran alleged that he has limitations on "doing a lot of things." He was having increased trouble standing, lifting, and bending, and further testified that strenuous activities became more difficult. Therefore, this claim must be remanded for a new VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). Furthermore, the Veteran received a VA examination in May 2015 and information regarding range of motion in passive motion and testing in nonweight-bearing was not conducted. Consequently, the Board must also remand the claim in order for another VA examination to be accomplished, to include a retroactive opinion with regards to whether the results of the May 2015 VA examination would have been reduced if there had been testing in both active and passive motion and in weight-bearing and nonweight-bearing. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Correia v. McDonald, 28 Vet. App. 158 (2016) (38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint). In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court also noted that for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves." Sharp, 29 Vet. App. at 34. The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. Id. at 10. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination so as to determine the current severity of his back disability. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must be performed. The back must be tested in both active and passive motion, in weight-bearing and nonweight-bearing. 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 examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. The examiner is also asked to determine whether the Veteran's range of motion results from the May 2015 VA examination would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing. To the examiner's best ability, the additional range of motion loss should be described and estimated in degrees. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.