Citation Nr: 21062727 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 12-13 868 DATE: October 12, 2021 REMANDED Entitlement to an initial disability rating in excess of 40 percent for low back pain and bulging disc, with foraminal stenosis, lumbar spine is remanded. INTRODUCTION The Veteran served on active duty from March 1984 to November 1984, April 1988 to November 1988, and February 1999 to March 2001. In March 2011, the Veteran attended an informal conference with a Decision Review Officer at the Portland RO. In August 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of each of the proceedings is of record. When this case was before the Board in January and November 2017, August and November 2018, October 2019, July 2020, and March 2021 the above-noted issue was remanded for additional development. The case has now been returned to the Board for further appellate review. REASONS FOR REMAND Though this case has been remanded on numerous occasions as noted above, the above-noted claim must yet again be remanded in order to ensure compliance with the prior Board remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). On many previous occasions the Board has indicated that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, to date, substantial compliance with these Board instructions has not been achieved. As noted in each of Board's prior remands, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court determined the final sentence of 38 C.F.R. § 4.59 requires VA examinations to 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. While the spine is not a paired joint such that range of motion measurements for the opposite undamaged joint are not necessary, under Correia there is a need for testing for pain on both active and passive motion and, if possible, when weight-bearing and nonweight-bearing. The Veteran underwent yet another VA back examination in April 2021 following the Board's most recent March 2021 remand. Unfortunately, the examiner again ignored the Board's instructions and failed to provide a range of motion assessment in both weight bearing and non-weight bearing. Therefore, this examination contains the same flaws noted in the prior VA examinations, and a remand is necessary to obtain an examination that satisfies sufficiency standards. Accordingly, the case is REMANDED for the following action: Afford the Veteran a VA examination by a physician with sufficient expertise to fully assess the severity of the Veteran's service-connected lumbar spine disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both ACTIVE and PASSIVE range of motion testing, as well as WEIGHT-BEARING and NONWEIGHT-BEARING range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Fraser, 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.