Citation Nr: 21076449 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 09-31 122 DATE: December 23, 2021 REMANDED Entitlement to an initial rating in excess of 20 percent for lumbosacral strain is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from August 1999 to August 2002 and from October 2006 to February 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for lumbosacral strain with an evaluation of 10 percent, effective February 19, 2008. In an August 2010 rating decision, the RO increased the evaluation from 10 percent disabling to 20 percent, effective February 19, 2008. The matter was previously remanded for further development in November 2013, April 2017, July 2018, August 2020, and March 2021. While the Board sincerely regrets additional delay, further development is once again necessary. When this matter was last before the Board in March 2021, the Board remanded the issue for a medical opinion regarding additional functional loss due to flare-ups as required by Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The remand directives asked the examiner to provide an opinion describing the functional impairment of the Veteran's back during flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, to report such impairment in terms of additional degrees of limitation of motion. The directives stated that if the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect the functional impairment. The examiner was instructed to include a discussion of any specific facts that could not be determined if unable to opine without speculation. Pursuant to the March 2021 Board remand, an addendum medical opinion was obtained in April 2021. The examiner stated that a review of the Veteran's available medical records and remand letter did not provide any documentation or information about the functional impairments associated with his back condition. He explained that due to the lack of documentation/information about the functional impairments associated with his back condition, and the fact that he had not personally examiner the Veteran, any opinion he could provide on the functional impairment would be mere speculation. He stated that the Veteran would need to be examined for the requested determinations to be made. Based on the April 2021 examiner's statement that the Veteran would need to be examined for the requested determinations to be made, he was afforded a new VA examination in May 2021. The Veteran reported almost constant pain, stiffness, and decreased mobility. He stated that since 2014, he has had periodic shooting pain down his left leg with tingling. As the Veteran did not report flare-ups of the thoracolumbar spine, the examiner did not provide an estimate range of motion in degrees during flare-ups. The examiner also did not provide the opinion requested in the March 2021 Board remand directives. As the April 2021 examiner did not provide the medical opinion requested in the March 2021 Board remand, the RO obtained a clarification medical opinion in August 2021. The August 2021 VA examiner noted that there were significant findings on the MRI of the Veteran's lumbar spine, but stated that those findings do not mean that they were causing severe range of motion (ROM) limitation as stated in the 2021 disability benefits questionnaire report. The examiner explained that as a medical provider even they have difficulty getting a clear ROM due to liability concerns. The examiner stated that once the examinee gives resistance or starts to scream in pain, the testing must be stopped to avoid any liability issues. The examiner explained that if his ROM was severely limited, then the Veteran would be seeing a physical therapist on a regular basis to treat his back condition and there would be ROM testing conducted at every visit. The examiner then opined that the Veteran's ROM must not be significantly limited because they did not see any physical therapy treatment in the Veteran's medical records. They then noted that this opinion was based on mere speculation. The Board finds the opinion provided by the August 2021 examiner to be inadequate. Although the examiner noted there were significant findings on the MRI of the Veteran's lumbar spine, the examiner did not discuss what those findings were or how those findings related to his ROM limitations. Additionally, the Board recognizes the limitations associated with ROM testing and notes that the Veteran should never be pushed beyond their pain thresholds to obtain the most accurate results. However, this examiner did not personally examine him and has no personal knowledge of whether he resisted further ROM testing or whether he was in too much pain to provide accurate testing results. Although the May 2021 examination report notes that the Veteran exhibited pain during ROM testing, there are no comments indicating that he was in too much pain to provide accurate testing results. Moreover, while physical therapy records may aid in formulating an opinion as to the severity of his condition, the absence of such records does not necessarily create a negative inference. Further, the examiner did not address the March 2021 remand directives to provide an opinion describing the functional impairment of the Veteran's back during flare-ups. Accordingly, as the August 2021 medical opinion is inadequate. Additionally, the April 2021 examination report noted that the Veteran had mild intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness of the left lower extremity due to radiculopathy. The examiner diagnosed him with lumbar spine radiculopathy involving the left sciatic nerve; the examiner did not clearly indicate whether his symptoms are associated with his service-connected lumbosacral strain. Given the deficiencies described above, and to ensure compliance with the prior remand directives, the Veteran should be afforded a new VA examination to address the nature and severity of his service-connected lumbar spine disability. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (once VA undertakes the effort to provide a medical examination or opinion, it must provide an adequate one); Stegall v. West, 11 Vet. App. 268, 271 (1998). On remand, the AOJ should also associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent evidence. The matters are REMANDED for the following action: 1. Associate with the Veteran's claims file any VA treatment records dated from December 6, 2020, to the present. 2. Give the Veteran an additional opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 3. Thereafter, schedule the Veteran for an appropriate VA examination by a competent medical professional to determine the current nature and severity of his service-connected lumbar spine disability. The entire record must be made available to, and be reviewed by the examiner. The examiner should take a history from the Veteran as to the progression of his service-connected lumbar spine disability. Following a review of the record and interview with the Veteran, the examiner must address each of the following: a) The examiner should describe all symptoms associated with the Veteran's service-connected right hip disability since February 19, 2008 (the effective date of the award of service connection). b) The examiner should conduct range of motion testing (expressed in degrees) in active motion, passive motion, weight-bearing, and nonweight-bearing. If pain is noted on range-of-motion testing, the examiner must specify at what point the Veteran's loss of range of motion was due to pain and at what point the evidence of pain ended. c) The examiner should ask the Veteran to report any range of motion loss during flare-ups or following repeated use since February 19, 2008. The Veteran should be asked to identify: (1) the frequency of flare-ups; (2) the duration of flare-ups; (3) any precipitating factors; and (4) any alleviating factors. Even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to flare ups and ask him to describe the additional functional loss include loss of range of motion, if any, he suffers during flare-ups or following repeated use. d) If the examination does not occur during a flare-up, based upon the evidence of record, and the information elicited on examination, to include the Veteran's lay statements, the examiner should state whether it is at least as likely as not (50 percent probability or greater) that, during a flare-up or following repetitive use, flexion is limited to 30 degrees or less (the measurements required for the next higher rating) at any point since February 19, 2008. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, and duration of flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. e) Additionally, the Veteran was diagnosed with lumbar spine radiculopathy involving the left sciatic nerve during the August 2021 VA examination. The examiner is asked to determine whether such is associated with the Veteran's service-connected lumbosacral strain. All examination findings/testing results, along with a complete, clearly-stated rationale for any opinion offered, must be provided. 4. Thereafter, readjudicate the appeal. James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fairlie, 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.