Citation Nr: 21069147
Decision Date: 11/17/21	Archive Date: 11/17/21

DOCKET NO. 16-56 360
DATE: November 17, 2021

REMANDED

Entitlement to a disability rating in excess of 10 percent for degenerative arthritis of the thoracic spine with chronic lumbar strain prior to January 21, 2016 is remanded.

Entitlement to a disability rating in excess of 20 percent for degenerative arthritis of the thoracic spine with chronic lumbar strain from January 21, 2016 is remanded.

INTRODUCTION

The Veteran served on active duty in the U.S. Army from December 2007 to December 2008, and from January 2007 to May 2007.

When this case was previously before the Board in September 2019 and June 2021 the above-noted issues were remanded for additional development.  The case has since been returned for further appellate review. 

REASONS FOR REMAND

While additional delay of the above-noted claims is unfortunate, the Board finds further development is required before the Veteran's claims are decided.

When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

To be considered adequate a musculoskeletal examination must contain a comprehensive assessment of the Veteran's flare-ups, as well as range of motion measurements in weight bearing, non-weight bearing, and in passive motion.  See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Correia v. McDonald, 28 Vet. App. 158 (2016).  

In the course of the June 2021 remand, the Board instructed the RO to obtain addendum evidence from the examiner who conducted the Veteran's most recent January 2020 VA back examination.  In particular, the Board noted the examiner failed to provide range of motion measurements with weight bearing, non-weight bearing, and in passive motion in accordance with Correia.  Further, the examiner also failed to provide all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the Veteran's flare-ups, as well as range of motion assessments during flare-ups.  Following the June 2021 remand, the RO obtained a June 2021 addendum statement from an examiner who did not conduct the January 2020 back examination.  As such, the examiner was unable to provide many of these critical evaluation assessments.  Based on the foregoing, the Board finds a new examination must be obtained.  A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Accordingly, these matters are REMANDED for the following actions:

Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected thoracolumbar spine disability.  All pertinent evidence of record should be made available to and reviewed by the examiner.  Any indicated studies should be performed.

Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments.

In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost.

If the examiner is unable to conduct the required testing or concludes the required testing is not necessary, he or she should be directed to clearly explain why that is so.

 

 

T. REYNOLDS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	G. Fraser, 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.