Citation Nr: 21072853 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-05 733 DATE: December 6, 2021 REMANDED Entitlement to a rating in excess of 20 percent for lumbar spine degenerative arthritis is remanded. Entitlement to service connection for right lower extremity radiculopathy is remanded. REASONS FOR REMAND The Veteran served on active duty from May 1988 to June 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Board remanded the matter for further evidentiary development. 1. Lumbar Spine The Veteran is seeking a rating higher than 20 percent for her service-connected lumbar spine disability. In the February 2020 remand, the Board found that in light of the evidence of possible worsening demonstrated by the need for additional physical therapy since the Veteran's last VA examination, and evidence of a history of flare ups, remand was warranted for additional examination and opinions. In a September 2021 VA examination report, the examiner noted that the Veteran reported pain on forward flexion and extension, as well as flare-ups. The Veteran reported that she experienced moderate flare-ups with "more back pain" due to "prolonged sitting, heavy lifting, and repetitive bending." The examiner found that these did result in functional loss, to include limited prolonged sitting, heavy lifting, and repetitive bending. However, the examiner also noted that the procured evidence (statements from the Veteran) did not suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with flare-ups. The examiner also noted that there were no symptoms, to include pain, which contributed to functional loss. The Board has also determined that these findings are internally inconsistent. Additionally, the examiner noted that the Veteran was not tested on repeated use over time and noted that the procured evidence (statements from the Veteran) did not suggest pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with repeated use over time. However, the examiner noted that the Veteran had functional loss with repetitive bending, which suggests functional loss due to repeated use over time. The Board has also determined that these findings are internally inconsistent. Additionally, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. In this case, the September 2021 VA examiner noted flare-ups of the thoracolumbar spine, but never attempted to estimate additional motion loss during flare-ups or explain why this estimate cannot be given, contrary to Sharp. Furthermore, the February 2020 Board decision remanded the Veteran's claim for an increased rating for her lumbar spine disability, in part, to obtain a new VA examination to fulfill the requirements outlined in Sharp v. Shulkin, 29 Vet. App. 26 (2017). As discussed above, the examiner did not comply with the directives of the February 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). As such, the examination is inadequate per Sharp and does not meet the due process compliance requirements under Stegall and requires remand for an additional VA examination to correct these deficiencies. 2. Right Lower Extremity Radiculopathy Finally, because a decision on the remanded issue of entitlement to a rating in excess of 20 percent for lumbar spine degenerative arthritis could significantly impact a decision on the issue of service connection for right lower extremity radiculopathy, the issues are inextricably intertwined. A remand of the claim for service connection for right lower extremity radiculopathy is required. The matters are REMANDED for the following action: 1. Obtain updated medical records, including private and VA treatment records, and associate them with the claims file. 2. Schedule the Veteran for an appropriate VA examination, to include via telehealth if warranted, to determine the severity of his service-connected lumbar spine disability. The claims file must be reviewed by the examiner. All indicated studies and testing must be conducted, and all pertinent symptomatology must be reported in detail. The examination should be conducted in accordance with the current disability benefits questionnaire, to include compliance with 38 C.F.R. § 4.59, as interpreted in Correia, and with Sharp. Rachel Walker Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael J. O'Connor, 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.