Citation Nr: 21071615 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 17-07 365 DATE: November 30, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the lumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1986 to February 1994 and November 1999 to November 2003. The Veteran appealed an August 2015 rating decision by the Agency of Original Jurisdiction (AOJ). In July 2021, the Board of Veterans' Appeals (Board) remanded the Veteran's claims to the AOJ for further action consistent with the Board's remand directives. The issues of service connection for a left and right knee condition were granted in a September 2021 rating decision. The Veteran has not expressed further disagreement with the knee issues. Therefore, the issues regarding the knees are no longer on appeal. A September 2021 rating decision granted an initial rating of 10 percent for the Veteran's back condition. The Board finds that further evidentiary development is necessary. The Board notes that the July 2015 and October 2017 examination reports noted flare-ups with activities. However, those examiners did not adequately elicit information regarding flare-ups and found it too speculative to note the limitation in range of motion during flare-ups. The Veteran noted periodic back spasms. See June 2016 notice of disagreement (NOD). The August 2021 examination report noted spasms after repeated use greater than one hour. Such periodic back spasms constitute potential flare-ups. However, the August 2021 examiner did not note flare-ups and provided minimal details given by the Veteran. In Sharp v. Shulkin, the Court of Appeals for Veterans Claims (Court) held that an examination is inadequate when the examiner does not elicit relevant information as to the Veteran's flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not "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 [he or she] could not do so." 29 Vet. App. 26, 35 (2019). As such, the Board finds the various examinations of record inadequate as they do not properly address flare-ups. Therefore, remand is required for a new examination. The matter is REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his low back condition that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for an examination to determine the current severity of his low back condition. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing (if applicable). 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. The examiner should identify any symptoms and functional impairments due to the Veteran's condition and discuss the effect of the Veteran's condition on any occupational functioning and activities of daily living. 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. After the above development has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.