Citation Nr: 21061723 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 17-21 439 DATE: October 5, 2021 ISSUE Entitlement to a disability rating in excess of 10 percent prior to September 11, 2020, for lumbosacral strain (back disability) and in excess of 20 percent thereafter. REMANDED Entitlement to a disability rating in excess of 10 percent prior to September 11, 2020, for the back disability and in excess of 20 percent thereafter is remanded. REASONS FOR REMAND The Veteran had active service from November 1983 to November 1987 and from November 1990 to May 1997. This case comes before the Board of Veterans' Appeals (Board) from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran and her spouse testified before the undersigned during a November 2019 videoconference hearing; a copy of the transcript is of record. When this case was previously before the Board in March 2021, it was remanded for additional evidentiary development. It has since been returned to the Board for further appellate action. The Board finds that additional evidentiary development is required before adjudication of this appeal. In response to the Board's remand, the Veteran was afforded a VA-contracted examination in May 2021 in which physical examination showed evidence of pain with weightbearing; however, range of motion in degrees was not provided. In Correia v. McDonald, 28Vet. 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, 29Vet. 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 May 2021 examination report did not provide all of the information specified by Correia, 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. The Veteran should be afforded a VA examination by an examiner with appropriate expertise to determine the current degree of severity of her service-connected back disability. The electronic claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed. All testing deemed necessary must be conducted and results reported in detail. 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 back, 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 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 must ALSO name the precipitating and alleviating factors. The examiner must ALSO estimate, "per [the] veteran," to what extent, if any, they affect functional impairment. A full and complete rationale for any opinions expressed is required. 2. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim on appeal. If any benefit sought on appeal remains denied, the RO must furnish the Veteran and her representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. 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.