Citation Nr: 21066963 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-03 588 DATE: November 3, 2021 REMANDED Entitlement to a rating in excess of 20 percent for lumbar strain with scoliosis and degenerative arthritis is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1994 to April 1998. This matter came before the Board of Veterans Appeals (Board) on appeal from an October 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during a November 2018 hearing. The transcript of the hearing is of record. A November 2018 Board decision dismissed the issues of service connection for a cervical spine disability and increased ratings for bilateral lower extremity radiculopathy and remanded the remaining issues on appeal for further development. A January 2021 Board decision then granted an increased rating for PTSD and remanded the remaining issues on appeal. An April 2021 Board decision denied service connection for a bilateral foot disability and remanded the issue on appeal for further development. An August 2021 Board decision remanded the issue on appeal for further development. The Board notes that a January 2021 rating decision granted entitlement to TDIU for the entire period on appeal. As noted in the April 2021 Board decision, this constituted a complete grant of the issue on appeal, and it is not before the Board. 1. Entitlement to a rating in excess of 20 percent for lumbar strain with scoliosis and degenerative arthritis is remanded. The August 2021 Board decision remanded the issue on appeal for a new VA examination regarding the severity of the Veteran's lumber spine disability. Pursuant to the remand, a VA examination was provided in August 2021. However, while the examiner found pain on range of motion testing and recorded functional endpoints, he did not note the point pain began as requested in the remand directives. As explained in the August 2021 remand, this does not allow the Board to properly assess the functional impairment caused by the disability. Examinations for joint disabilities generally must include range of motion measurements. See Correia v. McDonald, 28 Vet. App. 158, 169 (2016). In conducting these measurements, the examiner should note when any incoordination, weakened movement, or excess fatigability sets in. Id. The examiner should also note whether pain on motion is present, and, if so, where in the range of motion the pain sets in and whether that pain causes functional loss. Id. Remand is therefore required to provide an accurate picture of functional loss associated with the Veteran's lumbar spine disability. The Board also notes that the examiner provided an opinion in the August 2021 VA examination regarding the Veteran's reports of functional impairment during flare ups. He found that temporary incapacity due to inflammation and stiffness did not qualify as ankylosis. However, the Court of Veteran's Appeals recent decision in Chavis v. McDonough, U.S. Vet. App. No. 18-2928 (April 16, 2021) noted that increased ratings may be warranted based on additional functional loss during flare ups and specifically held that the requirements of ankylosis in the General Rating Formula for Diseases and Injuries of the Spine could be met with evidence of the functional equivalent of ankylosis during a flare. The August 2021 examiner's opinion regarding the technical ankylosis of the Veteran's spine does not address whether she is otherwise functionally ankylosed during a flare up. The lay evidence regarding inability to move during flare ups raises the question of whether the Veteran has a functional equivalent of ankylosis during flares, even if she is not technically ankylosed at those times. This question should be addressed upon remand. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of her lumbar spine disability. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all lumbar spine pathology found to be present. The examiner should conduct range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 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 describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. In estimating range of motion during flares, the examiner should specifically address whether the Veteran's symptoms result in the functional equivalent of ankylosis. The basis of that opinion should be clearly explained. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Bock 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.