Citation Nr: 21073976 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 15-27 551 DATE: December 13, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for the service-connected degenerative arthritis of the thoracolumbar spine is remanded. REASONS FOR REMAND The Veteran had active service from April 1987 to March 1990. This case is before the Board of Veterans' Appeals (Board) on appeal from a January 2015 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that rating decision, the RO denied entitlement to a disability rating in excess of 20 percent for the service-connected degenerative arthritis of the thoracolumbar spine. The Veteran's notice of disagreement (NOD) was received in January 2015. The RO issued the statement of the case (SOC) in June 2015, and the Veteran's VA Form 9, substantive appeal was received in July 2015. In November 2018, the Veteran testified at a video conference hearing at the RO before the undersigned Veterans Law Judge (VLJ). A transcript of that testimony is of record. In April 2019, the Board remanded the claim for further development. In a May 2020 decision, the Board denied the Veteran's claim for entitlement to a disability rating in excess of 20 percent for the service-connected degenerative arthritis of the thoracolumbar spine. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC or Court). In a July 2021 Court Order granting a Joint Motion for Remand (JMR) the Court vacated the Board's May 2020 decision, and remanded the case for further development in compliance with the directives specified in the JMR. 1. Entitlement to a disability rating in excess of 20 percent for the service-connected degenerative arthritis of the thoracolumbar spine The Veteran contends that he is entitled to a higher rating for his service-connected degenerative arthritis of the thoracolumbar spine, currently rated as 20 percent disabling. The Veteran was most recently afforded a VA examination for service-connected degenerative arthritis of the thoracolumbar spine in December 2019. As set out in the July 2021 JMR, the examiner noted that every range of motion (forward flexion, extension, right and left lateral flexion, and right and left lateral rotation) was abnormal. The examiner further indicated that the noted abnormal range of motion itself did not contribute to a functional loss; yet, the examiner also stated that pain was noted on exam and that it caused functional loss. However, the examiner did not "state at what point in any [range of motion] the pain began to cause functional loss." See JMR, p. 2. In order for a musculoskeletal examination to be adequate, the medical examiner must be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). If feasible, the examiner should portray such determinations "in terms of the additional range-of-motion loss due to pain on use or during flare-ups." Id.; see Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The JMR found that the December 2019 VA examination was inadequate for rating purposes because the examiner did not state at what point in any range of motion the pain began to cause functional loss Remand is necessary to obtain an examination addressing the points at which range of motion begins to cause functional loss, prior to re-adjudicating the claim. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination with an orthopedic physician, if possible. All indicated tests and studies should be performed, and all clinical findings must be reported in detail. The examiner must provide all examination findings, together with a full rationale for the comments and opinions expressed. The examiner should conduct range of motion testing of the thoracolumbar spine (expressed in degrees, with standard ranges provided for comparison purposes). The thoracolumbar spine should be tested in both active and passive motion, in weight-bearing and non weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must render specific findings as to whether there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination. If pain on motion is observed, the examiner must indicate the point at which pain begins. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe his flare-ups, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e., no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). (Continued on the next page) In providing the requested opinion, the clinician should consider the Veteran's reported symptoms, including the progression and severity of his reported symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported symptoms are inconsistent with the nature of the service-connected degenerative arthritis of the lumbar spine, this should be noted. Stated another way, do the Veteran's reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible? L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. KAYS HUKILL 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.