Citation Nr: 21067069 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 16-09 633 DATE: November 3, 2021 REMANDED Entitlement to a rating in excess of 20 percent disabling for compression deformity of L2 with moderate degenerative spondylosis from July 15, 2015, is remanded. REASONS FOR REMAND The Veteran served honorably in the United States Army on active duty from June 1993 to May 1997, from September 1999 to October 2002, from November 2002 to October 2003, from October 2003 to May 2011, from June 2011 to January 2012, and from January 2012 to March 2012. These issues come before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified ata hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is included in the record and has been reviewed. In April 2021, the Board remanded the case for further development, which has not been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a rating in excess of 20 percent disabling for compression deformity of L2 with moderate degenerative spondylosis from July 15, 2015, is remanded. The Board remanded this matter for additional development in April 2021, specifically for a new VA examination regarding the Veteran's low back disability. See April 2021 BVA Decision. The Veteran filed an increased rating claim for his compression deformity of L2 with moderate degenerative spondylosis in July 2015. The RO continued the Veteran's 20 percent rating for compression deformity of L2 with moderate degenerative spondylosis from April 1, 2012. A VA back (thoracolumbar spine) examination was conducted in June 2021. The examiner noted compression deformity of L2 with moderate degenerative spondylosis and diagnoses of degenerative disc disease (DDD) other than intervertebral disc syndrome (IVDS). See June 2021 VA Examination. Additionally, the Veteran was diagnosed with left lower extremity radiculopathy. The Veteran reported that his low back flare-ups are severe and occur twice a month for two days. He also reported that he has "function loss with walking, standing, bending, lifting, and climbing." The examiner measured the Veteran's active range of motion for forward flexion at 50 degrees and right and left lateral rotation endpoint at 30 degrees. Passive range of motion was not completed, as the examiner determined it was not medically advisable to perform as it could have caused further distress to the Veteran due to his back condition. Repetitive-use testing with at least three repetitions was completed with range of motion for the Veteran's back forward flexion at 50 degrees and right and left lateral rotation endpoint at 20 degrees. Repeated use over time testing was not completed but the examiner estimated range of motion for back forward flexion at 45 degrees and right and left lateral rotation endpoint at 15 degrees. The examiner was also unable to perform testing during a flare-up and estimated that the Veteran's range of motion during a flare-up was a forward flexion at 50 degrees and right and left lateral rotation endpoint at 30 degrees. The examiner noted that pain was the factor that caused this functional loss. No further opinion or rationale was provided regarding the Veteran's range of motion during flare-ups. Notably, the June 2021 examiner did not consider or address the Veteran's flare-up symptoms reported at his Board hearing. See February 2021 Hearing Transcript. At his hearing, the Veteran reported his forward range of motion typically is around 60 degrees at the beginning of the day, degrading to around 30 degrees by the end of the day with pain. On a particularly bad day, the Veteran testified that he is "on the floor" or "in the bed," as laying on a hard surface helps relieve pain. Given that the examiner determined repeated use over time and flare-ups caused equal range of motion limitations for the Veteran without further explanation and without considering the Veteran's reported flare-up limitations, the Board finds that the examiner did not adequately consider the Veteran's contentions of severe flare-ups. Therefore, the exam is inadequate for purposes of determining present back functionality. A remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand. Where remand orders of the Board are not complied with, the Board errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The VA also has a duty to assist veterans in developing their claims for benefits. 38 C.F.R. § 3.159. The duty to assist includes providing a medical examination when necessary to decide a claim. 38 C.F.R. § 3.159(c)(4). Once VA undertakes the effort to provide an examination, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board finds that there has not been substantial compliance with its previous remand directives based on the inadequate medical examination. As such, the matter must be remanded for a new VA examination to be conducted. The matter is REMANDED for the following action: 1. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 2. Obtain updated VA and/or pertinent private treatment records. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for an examination to determine the current severity of his service-connected low back disability. The electronic claims file must be made available to and reviewed by the examiner. The examination report must include a notation that this record review took place. All necessary testing should be conducted. In particular, the examination must include tests of all applicable ranges of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. 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. In addition, if the examination is not conducted during a flare-up, the examiner must attempt to ascertain information, such as frequency, duration, characteristics, severity, and functional loss (due to pain, weakness, fatigability, or incoordination) regarding any flare-ups by alternative means. The examiner must provide an estimate of functional loss in terms of range of motion based on the Veteran's statements, available medical records, and other relevant sources. A complete rationale must be provided for all opinions presented. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups for his back. The examiner must consider the Veteran's lay testimony in rendering this opinion, to include the Veteran's February 2021 Board Hearing testimony. 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 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). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board V. Schmidt 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.