Citation Nr: 21074012 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 18-07 583 DATE: December 14, 2021 REMANDED Entitlement to a disability evaluation in excess of 60 percent for low back strain with disc disease is remanded. REASONS FOR REMAND The Veteran had active duty service with the Army from December 1978 to February 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office. In a May 2019 decision, the Board denied the Veteran's claim for a disability rating in excess of 60 percent for his service connected back disability. The Veteran appealed his denial to the United States Court of Appeals for Veterans Claims (Court). In September 2021, the Court issued a decision to vacate and remand the issue back to the Board for readjudication. The Court found that the Board provided inadequate statement of reasons or bases to support its decision when it failed to address whether the Veteran experienced the functional equivalent of unfavorable ankylosis of the entire spine. In addition, the Court found that the Board erred in relying on a December 2017 VA examination without determining whether the examiner's inability to speculate on the Veteran's functional ability upon repeated use or flare-ups was based on insufficient knowledge among the medical community or the examiner's personal limitations. Considering the above, the Board finds that remand is warranted to obtain a new medical on the nature and etiology of the Veteran's functional limitations due to his service connected back disability. Although the examiner indicated there was a psychological etiology for the Veteran's pain, altered gait, and limited range of motion, the record is unclear whether the limitations during repeated use or flare-ups would result in ankylosis of the entire spine. Moreover, the Board cannot determine whether the noted psychological nature of the Veteran's back disability explains the examiner's inability to provide an opinion on functional loss with repeated use or during flare-ups without resorting to mere speculation, and if the inability is particular to the examiner or due to a lack of knowledge in the medical community. As such, the Board finds the December 2017 opinion inadequate for adjudication. Accordingly, the matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the current severity of his service-connected low back strain with disc disease. The examiner must review the entire claims file, to include a copy of this REMAND and annotate the review was performed. If deemed necessary by the examiner, additional testing or specialty consultation/examination required to comply with the Remand request should be performed. The examiner should include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. Moreover, the examiner should ascertain from his review of the record and by asking the Veteran to provide a full description (if he is not experiencing a flare) any manifestations of additional loss due to flare-ups, including but not limited to severity, frequency, and duration. The examiner must opine on whether the functional limitations of the Veteran's back disability from repeated use or during flare-ups amount to the equivalent of unfavorable ankylosis of the entire spine. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. The examiner must provide a complete written rationale for any opinion offered. If it is not possible to provide an opinion 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. 2. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, 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.