Citation Nr: 21065732 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 11-13 962 DATE: October 27, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to April 14, 2011, and in excess of 20 percent thereafter, for lumbar spinal stenosis is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1971 to February 1993. This matter comes to the Board of Veterans' Appeals (Board) from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Board remanded this claim for additional development, and, in September 2019, the Board denied the claim. The Veteran appealed the September 2019 Board decision to the United States Court of Appeals for Veterans Claims (CAVC) and, following a Joint Motion for Partial Remand, the issue of entitlement to an increased rating for lumbar spinal stenosis, status post-operative scar was remanded to the Board for further development and reasons and bases. In February 2021, the Board again remanded the claim. Entitlement to a rating in excess of 10 percent prior to April 14, 2011, and in excess of 20 percent thereafter, for lumbar spinal stenosis is remanded. As noted above, the Board most recently remanded this matter in February 2021. As relevant here, the Board asked a VA examiner to attempt to elicit information regarding the severity, frequency, and duration of any flare-ups and the degree of functional loss during flare-ups. The Board also asked the examiner to consider the Veteran's reported flare-ups during his April 2011, July 2016, and May 2017 VA examinations. Finally, the Board asked the examiner to provide an estimate, if at all possible, of any additional impairment due to flare-ups based on other evidence of record, if providing a specific measurement based on direct observation was not possible. The requested examination was conducted in July 2021. The examiner reported that the Veteran described flare-ups of thoracolumbar spine symptoms that occurred four to six times per month and lasted two to three days. The reported symptoms included pain, swelling, and numbness and tingling in the legs and were alleviated by rest, medication, and stretching. The examiner characterized the extent of the functional impairment as "pain with activity." In the section of the disability benefits questionnaire (DBQ) that requested an estimate, in degrees, of any additional limitation of motion of the spine during the described flare-ups, the examiner indicated that procured evidence did not suggest pain, fatigability, weakness, lack of endurance, or incoordination that significantly limited functional ability during flare-ups. However, the examiner did not reconcile that finding with the flare-ups described in the earlier portion of the DBQ. Furthermore, when asked to consider the Veteran's reported flare-ups during April 2011, July 2016, and May 2017 VA examinations, the examiner responded with "4-6x/month lasting up to 3 days." Notably, in the April 2011 VA examination, the Veteran reported functional impairment during flare-ups as rendering him "unable to get out of the bed." On remand, an additional examination is needed so that an examiner may consider, reconcile, if needed, and provide estimated additional limitation of motion for the Veteran's described flare-ups during the course of the appeal. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the severity of his low back disability, to include his described flare-ups. The examiner is asked to review the Veteran's descriptions of flare-ups in the April 2011 and July 2021 VA examination reports. The examiner should also again attempt to elicit additional information from the Veteran regarding the severity, frequency, and duration of any flare-ups and the degree of functional loss during those flare-ups. (Continued on the next page) If it is not possible for the examiner to provide a specific measurement of degree of functional loss during flare-ups based on direct observation of the Veteran during the examination, the examiner is asked to provide an estimate, if at all possible, of the additional impairment (in terms of range of motion) due to flare-ups based on the other evidence and the Veteran's statements. If the examiner cannot provide an estimate because the examiner determines that there is no additional limitation of motion associated with the flare-ups described in the April 2011, July 2021, and current examination (if applicable), the examiner is asked to confirm this and reconcile this finding with the Veteran's report, during the April 2011 VA examination, that he is unable to get out of bed during flare-ups of back symptoms. L. STEPANICK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.