Citation Nr: 21073009 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 06-15 486 DATE: December 7, 2021 REMANDED Entitlement to a rating in excess of 10 percent for degenerative joint and disc disease of the lumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from January 1975 to May 1977, and then again from July 1980 to February 1985, and then finally in the United States Coast Guard from September 2001 to March 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board decided the instant claim, along with eighteen others, were adjudicated in an October 21, 2020 Board decision. In that same Board decision, eight other claims were remanded. As of the date of this decision, there has been no Supplemental Statement of the Case (SSOC) issued with respect to any of the eight remanded claims. For this reason, the Board concludes that none of those claims are in appellate status at this time. The Veteran's nineteen adjudicated claims from the October 21, 2020 Board decision were addressed in a Joint Motion for Partial Remand (JMPR) granted by the Court of Appeals for Veterans Claims (Court) on September 1, 2021. The JMPR states that to the extent that the October 2020 decision denied entitlement to a rating in excess of 10 percent effective June 26, 2017 for degenerative joint and disc disease of the lumbar spine, only that finding (and only pursuant to that rating stage) is vacated. The JMPR explicitly states that among the eighteen other adjudicated issues, the granted claims should not be disturbed, and the other denied claims should be dismissed. The Board proceeds accordingly. 1. Entitlement to a rating in excess of 10 percent for degenerative joint and disc disease of the lumbar spine is remanded. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court confirmed that VA guidelines anticipate that examiners will offer flare-up (or in this case repeated use) opinions based on estimates derived from relevant sources, including the lay statements of veterans. If an examiner cannot provide an opinion without resorting to speculation, he or she must make it apparent that "the inability to provide an opinion without resorting to speculation," reflects the limitation of knowledge in the medical community at large "and not a limitation whether based on lack of expertise, insufficient information, or unprocured testing of the individual examiner." Sharp, 29 Vet. App. at 33 (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). The Veteran most recently submitted to a VA examination of the thoracolumbar spine on June 26, 2017. See VA Exam ( June 26, 2017 ). Here, the Veteran endorsed flare-ups of the spine that he "reports will have pain increase about few times per week, states thinks laying in bed causes the increase in pain." See id. at Question No. 2b. Significantly, the examiner failed to approximate how many degrees of range of motion could be lost in the thoracolumbar spine due to the Veteran's flare-ups and also alternatively failed to adequately explain why such an estimate might be impossible to provide. See id. at Question No. 3d. For this reason, the September 2021 JMPR vacated the portion of the October 2020 decision that denied the Veteran's claim for a rating in excess of 10 percent for this disorder since June 26, 2017. See JMPR (Sept. 1, 2021); BVA Decision (Oct. 21, 2020). On remand, the Veteran should therefore be scheduled for an updated examination so that functional impairment can be fully evaluated. The matter is REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in his possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. After outstanding records have been received, schedule the Veteran for a VA examination by an examiner with appropriate expertise to address the current level of severity of all impairment resulting from his lumbar spine. The claims file must be made available to and reviewed by the examiner. Any indicated studies should be performed The examiner should test for pain on motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If such testing cannot be completed, the examiner should indicate whey this is so. The examiner should also ask the Veteran to report any range of motion loss during flare-ups or following repeated use. Even if the Veteran is not experiencing a flare-up at the time of the examination, or testing is not occurring immediately following repeated use over time, the examiner must elicit relevant information regarding what functional loss exists during a flare up or after repeated use, if any. A rationale for any opinion should be provided. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.