Citation Nr: 21069820 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 12-22 226 DATE: November 19, 2021 REMANDED Entitlement to a rating in excess of 20 percent for degenerative spondylosis, lumbosacral spine L5, L1, and L2, is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1963 to March 1966, and from June 1966 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). As pertinent to this appeal, the Board remanded the increased rating issue in a December 2018 decision and in a July 2020 decision, denied a rating in excess of 20 percent for the Veteran's service-connected lumbar disability. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), which issued an Order in July 2021 granting a July 2021 Joint Motion for Remand (JMR). The Court's Order vacated and remanded the Board's decision denying the increased rating claim for action consistent with the terms of the JMR. The claim has now returned to the Board for additional development. This appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(b). Entitlement to a rating in excess of 20 percent for degenerative spondylosis, lumbosacral spine L5, L1, and L2 Pursuant to the December 2018 Board remand, the Veteran was afforded a VA examination in April 2019. However, the Board finds that the April 2019 VA examination is inadequate to adjudicate the issue on appeal. Specifically, there is no indication that the examiner performed range of motion testing for both passive and nonweight-bearing. Additionally, there is no statement from the examiner indicating whether such testing could not be performed or was otherwise inappropriate per Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, the examination is inadequate and does not comply with the Board's December 2018 remand directive. Stegall v. West, 11 Vet. App. 268, 271 (1998). As a result, a remand is necessary to obtain an adequate medical examination that will assist the Board in adjudicating the claim. When VA determines to provide an 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). The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment reports. 2. Thereafter, schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his service-connected lumbar disability. All indicated tests and studies should be undertaken. The record, including a complete copy of this Remand, must be made available for review in connection with the examination. (a) The examiner should identify the current nature and severity of all manifestations of the Veteran's lumbar disability. (b) The examiner should record the range of motion of the lumbar spine observed on clinical evaluation in terms of degrees for flexion and extension. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination, results in any loss of range of motion. (c) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use. In this regard, the examiner should indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. (d) If the Veteran endorses experiencing flare-ups of his back, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. If the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must make clear that he or she has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. In providing these opinions, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing and must answer whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use over time or during flare-ups. Any opinion offered should be accompanied by a clear rationale consistent with the evidence of record. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Battaile 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.