Citation Nr: 21063778 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 17-65 325 DATE: October 15, 2021 REMANDED Entitlement to a rating in excess of 20 percent for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1987 to April 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which continued the 20 percent rating for the Veteran's service-connected lumbar spine disability. The Board notes that in a September 2013 rating decision, the RO continued the 20 percent rating for the Veteran's lumbar spine disability. In September 2013, the Veteran filed a Notice of Disagreement (NOD) with the RO's decision. A Statement of the Case (SOC) was issued in November 2016. A VA Form 9 was received in March 2017, on which the Veteran requested that his appeal be reopened because his representative failed to inform VA that he wished to continue with his appeal. In the rating decision currently on appeal, the RO noted that the Veteran had requested to reopen the previous denial of his claim, however, an untimely VA Form 9 had been filed in response to a November 2016 SOC. The RO explained that the appeal was considered completed and closed and that its decision continuing the 20 percent rating was issued in response to a request for an increased evaluation filed in November 2016. In July 2020, the Board denied entitlement to a rating in excess of 20 percent for the Veteran's lumbar spine disability. The Veteran appealed the July 2020 Board decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, the Veteran and VA's General Counsel filed a joint motion for remand (JMR). In June 2021, the Court granted the parties' motion, vacated the July 2020 Board decision, and remanded the matter for actions consistent with the JMR. Entitlement to a rating in excess of 20 percent for a lumbar spine disability is remanded. The Veteran contends that his lumbar spine disability is more severe than currently rated. The Veteran was afforded a VA examination in October 2018. The Veteran reported an increase in pain since filing his original application for benefits. He reported that his pain was localized near the left sacroiliac joint, especially first thing in the morning or when arising from a sitting position. He also reported mild and intermittent radiation of pain into both lower extremities along the posterior thigh. The Veteran did not report flare-ups; however, he reported difficulty with running, bending forward especially in the morning, and that he was unable to play tennis or golf. Initial range of motion (ROM) testing was recorded as follows: forward flexion to 45 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. The Board notes that the Veteran was not examined immediately after repetitive use over time or during a flare-up. The examiner determined that the examination was neither medically consistent nor inconsistent with the Veteran's statements regarding functional loss with repetitive use over time or during flare-ups and indicated he was unable to determine without mere speculation whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time or flare-ups. The examiner stated in pertinent part, "There is no conceptual or empirical basis for making such a determination without directly observing function under these conditions." The examiner failed to provide a ROM assessment following repeated use over time or during a flare-up and merely reiterated his statement noted above. In the JMR granted by the Court, discussed previously, the parties agreed that the October 2018 VA examination was inadequate because the examiner failed to provide an estimate of the Veteran's ROM following repetitive use over time or during a flare-up pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017), or offer an adequate explanation as to why such could not be provided. Additionally, the parties agreed that reasonable efforts were not made to obtain the Veteran's private chiropractic treatment records for his lumbar spine disability. As such, the Veteran's claim is remanded for a new VA examination. Accordingly, the matter is REMANDED for the following action: 1. After obtaining the appropriate releases where necessary, procure any records pertaining to the Veteran's lumbar spine disability from Dr. Sahai and any other private practitioners identified by the Veteran. 2. The Veteran should be afforded a VA examination to determine the current severity of his service-connected lumbar spine disability, to include any associated radicular symptomatology. Access to the Veteran's electronic VA claims file must be made available to the examiner for review in connection with the examination. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner should test for both active and passive motion, as well as weight-bearing and non-weight bearing. The examiner should comment on the severity of any painful motion or weakness. The examiner should also provide range of motion measurements, including at what point in the arc of motion pain limits function both regularly and during any flare-ups, even if a flare-up is not observed on that day. In addressing the nature of any disability during a flare-up the examiner must address the severity of the flare-up, the frequency and duration of the flare-up, and all precipitating and alleviating factors. (Continued on the next page) The examiner should also provide range of motion measurements following repetitive use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment following repetitive use over time or due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Ruddy, 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.