Citation Nr: 21075980 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 12-28 347 DATE: December 22, 2021 ORDER Entitlement to an increased rating of 20 percent, prior to January 14, 2016, for service-connected low back strain with narrowing of the L5-S1 disc space is granted. REMANDED The issue of entitlement to a rating greater than 20 percent for service-connected low back strain with narrowing of the L5-S1 disc space is remanded. FINDING OF FACT Resolving doubt in the Veteran's favor, given the Veteran's pain and corresponding functional loss, including during flare-ups, his back disability at least approximates limitation of flexion to between 30 and 60 degrees for period prior to January 14, 2016. CONCLUSION OF LAW The criteria for a 20 percent rating for service-connected low back strain with narrowing of the L5-S1 disc space have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from March 1984 to September 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2010 rating decision in which the Veteran's disability rating for his service-connected low back strain was increased to 10 percent, effective June 7, 2010. The Veteran disagreed with that decision and subsequently perfected an appeal to the Board. During the pendency of the appeal, the Veteran's low back rating was increased to 20 percent, effective January 14, 2016. The procedural history of this case is a lengthy one that involves multiple actions by the Board and several appeals to, and remands from, the United Stated Court of Appeals for Veterans Claims (Court). As the procedural history has been detailed at length in the prior actions in the appeal, it will only be repeated herein as necessary to explain the state of the issues currently before the Board. In a March 2017 decision, the Board, inter alia, denied the Veteran's claim for an increased rating for his service-connected low back disability. The Veteran appealed that denial to the Court and in January 2018, the Court granted the parties' Joint Motion for Partial Remand (Joint Motion). Specifically, the parties agreed that the Board had erred in relying upon the reports of October 2012 and January 2016 VA examinations because neither examiner had adequately addressed the Veteran's functional impairment during flareups. In June 2018, the Board remanded the increased rating claim for the Veteran to be provided with a new VA examination, which examination was to specifically address the Veteran's lay reports of reduced functionality during flare-ups. The matter was again remanded in September 2019 to ensure compliance with the terms of the Boards June 2018 remand. Upon completion of the requested development, the agency of original jurisdiction (AOJ) issued a supplemental statement of the case in February 2021 in which it continued to deny a rating greater than 10 percent for the Veteran's service-connected low back strain prior to January 14, 2016, and a rating greater than 20 percent thereafter. The matter was thereafter returned to the Board for further appellate consideration. Regarding the Veteran's service-connected low back strain, the Board notes that the Veteran is also service connected for lumbar radiculopathy of the right and left lower extremities. Notably, in the March 2017 Board decision, the Board found that the criteria for separate 10 percent ratings, but no higher, was warranted for radiculopathy of the right and left lower extremities. The Board's decision was implemented by the RO that same month and an effective date of June 7, 2010, was assigned for the award of separate 10 percent ratings for radiculopathy of the right and left lower extremities. Then, in a February 2021 rating decision, a decision review officer increased the Veteran's right lower extremity radiculopathy rating to 20 percent, effective January 25, 2021. This award was based on findings contained in a January 2021 VA examination report. In correspondence received in July 2021, the Veteran's attorney asserts that an earlier effective date is warranted for the 20 percent rating assigned for the Veteran's right lower extremity radiculopathy. Specifically, the Veteran's attorney argues for an effective date of January 14, 2016. Notably, the Veteran has not filed a notice of disagreement as to the effective assigned for the award of an increased, 20 percent, rating for right lower extremity radiculopathy. The Board has considered whether, pursuant to the Court's holding in Chavis v. McDonough, 34 Vet. App. 1 (2021), the current rating for the right lower extremity radiculopathy is properly before the Board as part and parcel of the low back increased rating claim such that the Board may consider the propriety of the effective date assigned in connection with the award of a 20 percent rating for that disability, but finds that it is not. In Chavis, the Court considered whether the issues of increased ratings for the Veteran's bilateral lower extremity radiculopathy were part of his claim for a higher rating for an underlying lumbar spine disability. In that case, the RO awarded separate ratings for radiculopathy during the pendency of the Veteran's appeal of entitlement to a higher evaluation for his lumbar spine disability. The Court concluded that, given the nature and progression of Mr. Chavis's lumbar spine condition and VA's duty to sympathetically construe his broadly worded, pro se filings, the issues of increased evaluations for Mr. Chavis's bilateral lower extremity radiculopathy were part of his claim seeking a higher evaluation for the underlying lumbar spine disability The instant case is distinguishable from Chavis. As noted above, it was the Board, and not the RO, that awarded separate 10 percent ratings, but no higher, for radiculopathy of the right and left lower extremities. The March 2017 Board decision, which also denied an increased rating for the Veteran's low back strain, was thereafter appealed to the Court. The Board points out that the Veteran raised no argument regarding the Board's assignment of a 10 percent rating, but no higher, for the Veteran's radiculopathy of the right lower extremity. Further, the Joint Motion did not disturb the Board's assignment of separate 10 percent ratings, but not higher, for radiculopathy of the lower extremities. The Board's March 2017 decision thus became final as to the radiculopathy ratings assigned therein. As such, the Board finds that any issue regarding the Veteran's radiculopathy ratings are no longer within the scope of the Veteran's claim for an increased rating for this service-connected low back strain as was the case in Chavis. By arguing, at this juncture, that the Veteran's right lower extremity radiculopathy rating remains on appeal as part of the low back increased rating claim and that he is entitled to an effective date for the award of a 20 percent rating for right lower extremity radiculopathy that predates the Board's final March 2017 decision, the Veteran's attorney is attempting to circumnavigate the finality of the March 2017 Board decision that found that the Veteran was entitled to only a 10 percent rating for radiculopathy of the right lower extremity. If the Veteran believes that he is entitled to an earlier effective date for the award of the 20 percent rating for right lower extremity radiculopathy, he is free to file a notice of disagreement as the February 2021 rating decision, as the time limit for doing so has not yet expired. Disability Rating Prior to January 14, 2016 In the instant case, the Veteran is seeking an increased rating for his service-connected low back strain. Upon review of the evidence, as will be discussed below, the Board finds that an increased rating of 20 percent is warranted for the period prior to January 14, 2016. However, as the evidence of record is insufficient to determine whether a rating greater than 20 percent is warranted since that time, the issue of entitlement to a rating greater than 20 percent must be remanded. Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155 ; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern." Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. For disability rating claims, staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007) (for increased rating claims); Fenderson v. West, 12 Vet. App. 119, 126 (1999) (for initial rating claims). Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7 In the instant case, the Veteran's service-connected lumbar strain with mild lumbar scoliosis is currently evaluated as 20 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237. While the rating for the Veteran's lumbar spine disability is assigned under DC 5237, pertaining to lumbosacral or cervical strain, all diseases and injuries of the spine, are evaluated in accordance with the criteria set forth in the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula); intervertebral disc syndrome under DC 5243 may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a , DCs 5235-5243. The Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. In the instant case, although certain diagnostic codes pertaining to the back were revised (specifically DCs 5242 and 5243), the criteria for evaluating disabilities of the spine were not changed. As such, the amendments to the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a have no bearing on this appeal. Applicable to the current appeal, the General Rating Formula provides for a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, DCs 5235-5243. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent evaluation is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or where there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. Id. The General Rating Formula also directs that associated objective neurologic abnormalities are to be evaluated separately under an appropriate DC. Id. at Note (1). Additionally, when an evaluation of a disability is based on limitation of motion and/or arthritis, the Board must also consider, in conjunction with the otherwise applicable DC, any additional functional loss a veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40, 4.45, 4.59. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. See 38 C.F.R. §§ 4.40, 4.45, 4.59. Consideration must also be given to functional loss on use or due to flare-ups. The Board also notes that in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the United States Court of Appeals for Veterans Claims (Court) held that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares and then 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 she could not do so." Evidence relevant to determining the appropriate rating for the Veteran's service-connected lumbar spine disability includes private treatment records dated in June 2010, wherein it was noted that the Veteran had pain when bending over and a lot of discomfort when he sat for a long time. A July 2010 new patient consultation notes that the Veteran had occasional discomfort with laughing, coughing, and sneezing. In another July 2010 private treatment note, the Veteran's pain was described as radiating pain with aching and numbness, worsened by prolonged standing, walking, bending backwards, and twisting or rotational movements. The Veteran denied numbness and tingling sensation in the lower extremities but reported spasms in the lower back. Range of motion testing revealed flexion within normal limits, decreased extension with pain, decreased bilateral rotation, and decreased bilateral side bend was decreased. There was no lumbar area tenderness, but modern spasticity was noted throughout the area. A July 2010 record from Florida Institute of Pain Medicine reflects that the Veteran reported his back pain as a 3 "most of the time" but that it can be as low as a 2 or as high as a 10 on a 10-point scale. In August 2010, the Veteran underwent medial branch blocks of the left L3-L4, L4-L5, and L5-S1 facet joints under fluoroscopy. The Veteran was afforded a VA examination in August 2010, at which time he reported that his symptomatology had progressively worsened since onset. The Veteran reported low back pain with severe flare-ups every two to three weeks that lasted one to four days and were precipitated by heavy lifting and yard work. He stated that during flare-ups, he only did light duty basic activities and was not able to lift or stand for a prolonged amount of time. The Veteran denied a history of urinary incontinence, urinary urgency, urinary frequency, numbness, paresthesia, left foot weakness, falls, and/or unsteadiness. He did report tight, aching pain that was near constant and moderate. There was no radiation of pain, fatigue, or weakness; there was, however, decreased motion, stiffness, spasm, and spine pain. Range of motion testing revealed flexion to 75 degrees, with pain at 70 degrees; extension to 30 degrees, with pain at 25 degrees; bilateral lateral flexion to 40 degrees; and bilateral lateral rotation was to 30 degrees. There was objective evidence of pain on active range of motion, but there was no additional limitations after three repetitions of range of motion. Sensory examination was normal for vibration, position sense, pain or pinprick, and light touch. The Veteran reported that at work, he was assigned different duties and had symptoms such as decreased mobility, problems with lifting and carrying, lack of stamina, and pain. The Veteran also reported problems with heavy lifting, bending, and prolonged standing with yard work. A July 2012 VA treatment note shows that the Veteran's back symptomatology had been worsening for the past four months and that he had some right-sided radiculopathy with pain radiating down his right posterior leg. It was noted that the Veteran was also followed by the pain clinic and had received spinal injections with good pain control, with his last injection being approximately 18 months prior. An August 2012 Neurospinal Function Index revealed that the Veteran was in transition from good to challenged. The Veteran was afforded another VA examination in October 2012, at which time he stated that in 2010 he started having facet injections to deal with his back pain. The Veteran reported that the pain radiated down his right leg and that his back had flared up 8 to 10 times in the past year, with each flare up lasting one week. During a flare-up, the Veteran stated that he was able to move around after about four days and was sometimes able to work. Range of motion testing revealed forward flexion to 70 degrees, including with pain; extension to 10 degrees, including with pain; bilateral lateral flexion to 30 degrees or greater, including with pain; right lateral rotation to 20 degrees, including with pain; and left lateral rotation to 30 degrees or greater, including with pain. The Veteran was able to perform repetitive use testing with three repetitions and there was no change in range of motion. His functional loss/impairment included less movement than normal, pain on movement, and interference with sitting, standing, and/or weight bearing. The Veteran had localized tenderness and pain to palpation for joints and/or soft tissue of the thoracolumbar spine. Guarding and/or muscle spasm was also present, but it did not result in abnormal gait or spinal contour. Muscle strength testing was normal and there was no muscle atrophy. The results of the Veteran's reflex examination, sensory examination, and straight leg raising tests were all normal, and there was no evidence of radiculopathy or any other neurologic abnormalities or of intervertebral disc syndrome. Occupationally, the Veteran reported that he had worked full time at Target for seven years. The Veteran reported that he could not stand, lift, twist, or push, but that his supervisor worked with him a lot and was understanding. Private treatment records dated in 2013 reflect that the Veteran reported severe lower back pain, the severity of which was anywhere from a 3 to a 9/ 10. He endorsed having flare-ups in 2007, 2010, and 2012, and reported that pain levels were more concentrated on the right side. He also reported that he had recently "had to retire from [his] job at Target due to the many increases in back pain." (Parenthetically, the Board notes that although the Veteran was not working in 2013, VA treatment records dated in 2017 indicate that the Veteran employed and at the time of a January 2020 VA examination, the Veteran stated that he worked full time as a maintenance coordinator at a credit union.) Physical examination of the Veteran revealed palpable muscles spasms on the right and tenderness. Range of motion testing revealed flexion to 70 degrees; extension to 20 degrees; left rotation to 20 degrees; right rotation to 10 degrees, with severe pain; left lateral flexion to 10 degrees; and right lateral flexion to 20 degrees. Pain throughout all ranges of motion was noted. Additional treatment records dated in April 2013 reflect sacral and right lumbar discomfort, the severity of which was reported to be a 4/5 out of 10. Records in May 2013 reflect that the Veteran rated his lumbar discomfort as a 3 out of 10, 4 out of 10, 5 out of 10, and 6 out of 10. Records dated in June 2013 reflect that the Veteran rated his lumbar discomfort as 5/6 out of 10. The Veteran stated that the frequency of the pain/discomfort was present 50 percent of the time. Records dated in September 2014 reflect that the Veteran reported his pain to be a 7 out of 10, with pain being present 70 percent of the time. Similar reports are contained in treatment records dated throughout the remainder of 2014 and into 2015, with the severity of the Veteran's pain ranging from 3 to 7 out of 10. The Veteran was again examined in January 2016, at which time he described experiencing low back pain, the severity of which was estimated to be 4 out of 10 on a good day and an 8/9 out of 10 on a bad day. On a bad pain day, the Veteran reported that he could not get out of bed. Flare-ups were noted, which were indicated to result in functional loss or functional impairment. However, the extent of such loss was not estimated by the VA examiner. Specifically, the examiner indicated that he was unable to indicate whether pain, weakness, fatigability or incoordination significantly limited the Veteran's functional ability during a flare-up without resorting to mere speculation. Range of motion testing revealed flexion to 45 degrees; extension to 10 degrees; right and left lateral flexion to 20 degrees; and right and left lateral rotation to 20 degrees. Pain was noted throughout all ranges of motion, as well as with weight-bearing. There was also localized tenderness resulting in abnormal gait or abnormal spinal contour. Based on the results of the January 2016 VA examination, the AOJ increased the Veteran's disability rating to 20 percent due to the fact that the Veteran's flexion was limited to 45 degrees. Additional symptoms supporting the higher, 20 percent, rating were noted to include localized tenderness resulting in abnormal gait or abnormal spinal contour and painful motion upon examination. Upon review of the evidence, the Board finds that with application of the DeLuca factors, and when reasonable doubt is resolved in favor of the Veteran, the Veteran's low back disability has more closely approximated the criteria for a 20 percent rating under the General Rating Formula for Diseases and Injuries of the Spine throughout the relevant time period prior to January 14, 2016 Although the Veteran was able to achieve flexion to higher degree than that strictly contemplated by the criteria applicable for a 20 percent rating, the Veteran has reported back pain, at times severe, limited tolerance to bending, lifting, standing and walking, and flare-ups of pain lasting for multiple days at a time. The Board finds this to be evidence in support of a disability picture that is more severe than that which is contemplated by the 10 percent rating currently assigned prior to January 14, 2014. Further, the lay evidence of record suggests that the Veteran's back pain impacts mobility to a greater degree than indicated by the VA examination reports of record. Indeed, as agreed to the by the parties in their September 2015 and January 2018 Joint Motions, the Veteran's flare-ups were not adequately addressed by the VA examiners who examiner the Veteran in October 2012 and January 2016. Indeed, at the time of the October 2012 VA examination, the Veteran reported that his back had flared up 8 to 10 times during the past year, with each flare-ups lasting approximately 1 week. The Veteran intimated that he was unable to move about for the first four days of a flare-up. Further, in August 2010, the Veteran reported severe flare-ups every two to three weeks, lasting one to four days. The Board finds no reason to discount the Veteran's reports in this regard and concludes that the overall duration of flare-ups reported by the Veteran suggests Veteran's low back disability impacts his functional abilities to a degree greater than that contemplated by a 10 percent rating. Thus, in light of the Veteran's statements made prior to January 14, 2016, regarding the severity of his back pain and the functional impact that pain has, and in consideration of the fact that no VA examiner was able to determine the additional loss of range of motion that results during a flare-up, the Board finds that the evidence is at least evenly balanced as to whether the symptoms of the low back disability more nearly approximate forward flexion from 30 to 60 degrees required for a 20 percent rating under the General Rating Formula during the relevant time period. Relatedly, the Board notes that to the extent that any examination was inadequate with regard to flare-ups, the Board has remedied this inadequacy by itself estimating the degree of additional limitation of motion caused by flare-ups in a manner favorable to the Veteran. Cf. Sharp, 29 Vet. App. at 33 (finding orthopedic examination inadequate with regard to flare-ups where the examination was the basis for a denial of a higher disability rating). Regarding whether a rating greater than 20 percent is warranted at point prior to January 14, 2016, the Board finds that it would be premature at this juncture to consider whether such may be warranted. This is so because, as noted above, the issue of entitlement to a rating greater than 20 percent from January 14, 2016, forward must be remanded for further development. As the Board cannot conclude that there is no reasonable possibility that the evidence to be developed on remand could not support a higher rating prior to January 14, 2016, the Board finds it proper to simply remand the issue of entitlement to a rating greater than 20 percent, as opposed to bifurcating the Veteran's appeal into specific time periods. REASONS FOR REMAND Regarding whether a rating greater than 20 percent is warranted, the Board notes that in September 2019, the Board remanded the Veteran claim of entitlement to an increased rating for his service-connected low back strain to ensure compliance with the Board's June 2018 remand directives. Specifically, the Board directed that the AOJ was to schedule the Veteran for a new VA examination to assess the severity of his low back disability, to include range-of-motion testing and consideration of functional impairment during flare-ups. On remand from the Board, the Veteran was afforded a VA examination in January 2020. At that time, range-of-motion testing was not conducted due to the Veteran's fear of pain. Further, flare-ups were not addressed, as it was reported that the Veteran had denied flare-ups at that time. In August 2020, the AOJ sought an addendum opinion regarding whether the Veteran had muscle spasms and/or guarding. Notably, the examiner who had examined the Veteran in January 2020 was not available to provide the clarifying opinion. The Veteran was then afforded another VA examination in January 2021. The examiner conducted range-of-motion testing, the results of which were noted to show abnormal or outside of normal range of motion for the thoracolumbar spine. The examiner also indicated objective evidence of pain with motion, to include on flexion, extension, right and left lateral rotation, and right and left lateral flexion; however, the examiner made no specific finding as to the degree of range-of-motion loss due to pain on use. Thus, it is unclear from the January 2021 examination report at what point the Veteran experienced painful motion. The Court has found similar examination findings to be inadequate because the examiner did not explicitly report "whether and at what point during the range of motion the appellant experienced any limitation of motion that was specifically attributable to pain." Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). The Court stressed that such a finding is important in providing a "clear picture of the nature of the veteran's disability and the extent to which pain is disabling," so as to "allow the Board to ensure that the disabling effects of pain are properly considered when evaluating any functional loss due to pain that is attributable to the veteran's disability." Id. Accordingly, the Board finds that the matter of entitlement to a rating greater than 20 percent must be remanded for the Veteran to be afforded another VA compensation examination to more definitively assess the current severity of his service-connected low back disability. Moreover, with regard to flare-ups, the Veteran's attorney has argued that flare-ups were not properly considered because the Veteran had reported his flare-ups lasted for 3 to 10 days, whereas the VA examiner indicated flare-ups of 1 to 2 days duration. The Veteran's attorney has argued that a new examination is warranted to address the Veteran's reported symptoms during flare-ups. As the matter is being remanded for a new VA examination, the Veteran will have the opportunity to address the severity of his flare-ups on remand. The matters are REMANDED for the following action: Arrange for the Veteran to undergo a VA back examination to determine the current severity of his service-connected low back strain. The contents of the entire, electronic claims file, to include a complete copy of this REMAND, must be made available to the designated individual, and the examination report should reflect consideration of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all results furnished to the examining clinician prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner should conduct range of motion testing of the thoracolumbar spine (reported in degrees). Specifically, the examiner should test the range of motion in active motion and passive motion, and on weightbearing, and non-weight bearing (as appropriate). 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 so state, and explain why. In conducting range of motion testing, the examiner should render specific findings as to whether, during the examination, 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 motion limiting pain begins. The examiner must also inquire as to periods of flare-up and additional functional loss due to repetitive use over time and note the frequency and duration of any such incidents. If the examination is not conducted during a flare up, based on consideration of the Veteran's documented medical history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss in the lumbar spine due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use. To the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. The examiner should also indicate whether the Veteran has ankylosis of the thoracolumbar spine; and, if so, the extent of any such ankylosis, and whether the ankylosis is favorable or unfavorable. (Continued on the next page) The examiner should make a specific finding as to whether the Veteran has IVDS. If IVDS is diagnosed, the examiner should render all findings necessary to apply the rating criteria for evaluating IVDS based on incapacitating episodes. Complete, clearly stated rationale for the conclusions reached, must be provided. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Neilson, 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.