Citation Nr: 21067696 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 15-12 411 DATE: November 5, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for myofascial pain syndrome of the low back (low back disability) prior to June 27, 2019 is remanded. Entitlement to an initial rating in excess of 40 percent for myofascial pain syndrome of the low back (low back disability) from June 27, 2019 and onward is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from November 2004 to January 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the appeal in July 2018 to the agency of original jurisdiction (AOJ) for further development. A June 2020 Board decision denied entitlement to an initial rating in excess of 20 percent prior to June 27, 2019 and in excess of 40 percent from June 27, 2019 and onward for the Veteran's for low back disability. The Veteran appealed this determination to the United States Court of Appeals for Veterans Claims (Court). In July 2021, the Court granted a Joint Motion for Partial Remand (JMPR) and remanded the claim to the Board for action consistent with the JMPR. The appeal previously included claims service connection for bilateral plantar fasciitis, bilateral allergic conjunctivitis, and hoarseness. The Board granted these claims in its June 2020 decision. As this is a full grant of the benefit sought on appeal, these issues are no longer before the Board. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The Veteran's appeal has been advanced on the docket. 38 C.F.R. § 20.902. 1. Entitlement to an initial rating in excess of 20 percent for low back disability prior to June 27, 2019 2. Entitlement to an initial rating in excess of 40 percent for low back disability from June 27, 2019 and onward For the reasons that follow, the Board finds that additional development is needed prior to adjudication. In this regard, the Veteran underwent a VA examination for his low back disability in June 2019. At that time, the Veteran reported that "[h]e continues treatment by VA pain clinic with medication." Upon remand, the agency of original jurisdiction (AOJ) must make efforts to obtain any treatment records that may be outstanding, pertinent to the Veteran's low back disability, to include VA pain clinic records. See Culver v. Derwinski, 3 Vet. App. 292 (1992) (noting that VA has a duty to obtain all pertinent medical records which have been called to its attention by the appellant and by the evidence of record). Further, the Board notes that in Sharp v. Shulkin, the Court held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why she could not do so." 29 Vet. App. 26 (2017). As noted in the July 2021 JMPR, the February 2012 VA examination for the Veteran's low back disability did not comply with requirements of Sharp. In addition, at the June 2019 VA examination for his low back disability, the Veteran reported experiencing flare-ups twice a month with worsened pain and limited ability to get out of bed. The June 2019 examiner noted that pain, weakness, and lack of endurance significantly limit the Veteran's functional ability with flare-ups. However, the examiner was not able to describe the functional loss during flare-ups in terms of range of motion because "[the Veteran's] subjective medical history, exam, examiner's medical knowledge, and literature provide no basis for describing functional loss in terms of [range of motion]." See June 2019 VA examination; see also August 2021 Memorandum from the Veteran. The examiner also did not provide passive and non-weight bearing range of motion of the Veteran's low back. See Correia v. McDonald, 28 Vet. App. 158 (2016). Based on the foregoing, the Board is unable to properly evaluate the Veteran's low back disability, including his functional limitations during flare-ups. Accordingly, this matter is remanded for an examination in compliance with Sharp and Correia. The matters are REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding treatment records pertinent to the Veteran's claim, to include VA pain clinic records. If any requested records are not available, the record should be annotated to reflect such, and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 2. After completing #1, schedule the Veteran for an examination with an appropriate physician (preferably an orthopedist) to fully assess his low back disability. All pertinent evidence of record must be made available to and reviewed by the examiner. The examiner should obtain a complete history from the Veteran and review his claims file (to include this remand). Any indicated studies should be performed. Based upon a review of the Veteran's pertinent history, including the various competent lay statements, and the examination results: (a) The examiner must test and report the range of active motion and passive motion, including with pain, in degrees, on weight-bearing and non-weight-bearing. (b) The examiner must review the claims file, as well as elicit information, regarding the severity, frequency, and duration of any flare-ups, and the degree of any additional functional loss due to repetitive motion over time or during flare-ups. (c) If the Veteran is not currently experiencing a flare-up, then based on relevant information elicited from the Veteran, a review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss from repetitive use over time and/or during flare-ups, the examiner is requested to provide an estimate of the Veteran's functional loss due to repetitive use over time and flare-ups expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). 3. The above examiner should also provide retrospective medical opinion, to the extent possible utilizing the evidence of record and the February 2012 VA examination report, regarding the severity of the Veteran's service-connected low back disability for the period prior to June 27, 2019, utilizing the same criteria identified above and in compliance with Sharp requirements. 4. After the necessary development has been completed, readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuzniar, 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.