Citation Nr: 21067054 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-39 518 DATE: November 3, 2021 REMANDED Entitlement to a disability evaluation in excess of 10 percent prior to February 19, 2019, and in excess of 20 percent thereafter, for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from June 1973 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied an increased disability rating for a low back disability. In March 2019, the RO increased his disability evaluation to 20 percent, effective February 19, 2019. Because this increased rating is not representative of a total grant of the benefits sought, however, the claim for an increased rating remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In October 2016, the Veteran testified before the undersigned at a hearing. A transcript of his testimony has been associated with the claims file. By way of procedural background, the Board previously remanded this matter for additional development in December 2018 and June 2019 decisions. In the June 2019 remand, the Board directed for the RO to schedule a new VA examination that complied with the holdings of Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Among other things, the Board's remand directives instructed the examiner to specify the degree where pain began on all ranges of motion tested if motion was limited by pain, as well as to elicit information and consider complaints regarding flare-ups. On remand, the RO provided the Veteran with a VA examination in November 2019. During the examination, however, the VA examiner did not specify the degree at which pain began for affected areas as required in the June 2019 remand instructions. Moreover, although the Veteran denied flare-ups, the VA examiner did not acknowledge that he had reported flare-ups in February 2019 or provide any medical analysis of those flare-ups, consistent with the June 2019 remand directives. In a December 2020 decision, the Board denied the Veteran's claim for a rating in excess of 10 percent prior to February 19, 2019, and in excess of 20 percent thereafter, for his low back disability. He timely appealed this decision to the Court of Appeals for Veterans Claims (Court). While his appeal was pending, however, the parties filed a Joint Motion for Remand (JMR). Pursuant to the terms of the JMR, the parties agreed that the Board erred to the extent that it failed to ensure that he was provided with an adequate VA examination that complied with its prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Consistent with the terms of the JMR, the Court vacated the December 2020 decision and remanded the appeal for further development. The matter now returns to the Board. The Board has carefully considered the JMR, which states that further remand is warranted to obtain a new VA examination that complies for the Board's June 2019 directives. Pursuant to the terms of the JMR, the Board directs the RO to afford the Veteran another VA examination. Accordingly, this matter is REMANDED for the following action: Schedule the Veteran for a new VA examination to determine the severity of his low back disability. The appropriate disability benefits questionnaire (DBQ) form should be used. The VA examiner must undertake the following: (a.) Conduct range of motion testing of the low back, specifically noting the motion in degrees in both active and passive motion and in both weight-bearing and non-weight-bearing. The VA examiner must specifically indicate whether this testing has been conducted or, if not, provide a clear explanation as to why not. (b.) If motion is specifically limited by pain, specify the degree where pain is noted to begin for all ranges of motion tested. (c.) To the extent possible, describe any incoordination, weakened movement, and excess fatigability on use. To the extent possible, assess the functional impairment due to incoordination, weakened movement, and excess fatigability on use in terms of additional degrees of limitation of motion. (d.) Specify whether ankylosis or its functional equivalent is present. (Continued on the next page) (e.) Consider all complaints of flare-ups, including his complaints of flare-ups in a February 2019 DBQ. In doing so, inquire whether the Veteran has had any periods of flare-ups. If range of motion testing cannot be performed during a flare-up, elicit information regarding their severity, frequency, and duration; their precipitating and alleviating factors; and to what extent, if any, they affect functional impairment (including in terms of degrees of motion, if possible). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.