Citation Nr: 21076725 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 14-35 225 DATE: December 27, 2021 REMANDED Entitlement to a rating higher than 10 percent prior to December 2, 2010 and higher than 20 percent from December 2, 2010 for intervertebral disc syndrome (IVDS) of the lumbar spine is remanded. REASONS FOR REMAND The Veteran had active duty service from May 1978 to September 1982. This matter comes to the Board of Veterans' Appeals (Board) from a rating decision dated in September 2010 of a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified at a Board hearing in January 2018. A copy of the transcript has been associated with the record. A September 2020 Board decision denying the Veteran's claim for an increased rating for his back disability was vacated by the United States Court of Appeals for Veterans Claims (CAVC) in July 2021. The case has been remanded to the Board, and, as explained below, must be remanded to the AOJ for additional development. Entitlement to a rating higher than 10 percent prior to December 2, 2010 and higher than 20 percent from December 2, 2010 for IVDS of the lumbar spine is remanded. The CAVC vacated the previous Board decision because the VA examinations of the Veteran's spine are inadequate for rating purposes. The Veteran underwent VA examinations for his IVDS in August 2010, December 2010, April 2014, and August 2019. The VA examinations of record do not adequately address limited motion during flare-ups, limited range of motion caused by pain, or address passive range of motion. In order to be adequate, VA examiners must provide opinions regarding flare-ups based upon estimates derived from information procured from relevant sources, including lay statements, when a flare-up is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). At the August 2010, December 2010, and August 2019 VA examinations, the Veteran reported that he experienced flare-ups of his spine. None of those VA examination reports includes estimates of functional ability with flare-ups or repetitive use over time. Under Sharp, 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, the examiner must "[E]licit relevant information as to the veteran's flares or ask him to describe the additional functional loss, if any, he suffered during flares[.]" Sharp, 29 Vet. App. at 35. The Board notes that the examiners did not consider the relevant information obtained from the Veteran prior to the examinations concluding that estimates could not be made. Additionally, the examiner should have elicited additional information, such as how far the Veteran can bend forward during a flare-up, or whether the flare-up was akin to functional ankylosis. In other words, the examiners did not elicit sufficient information regarding flares in order to estimate the average limitation of range of motion or which rating criteria the Veteran's disability most closely approximates. See 38 C.F.R. §§ 4.1,4.3, 4.7. Additionally, the examinations are inadequate because, where feasible, the examiners should describe any limitations "in terms of the degree of additional range-of-motion loss due to pain on use." Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (explaining that the examiner must state at what point in the range of motion the claimant experienced limited motion specifically attributable to pain). Additionally, the involved joint should be tested "for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with the range of motion of the opposite undamaged joint." 38 C.F.R. § 4.59, Corriea v. McDonald, 28 Vet. App. 158, 170 (2016). Thus, to comply with Sharp, Correia, and Mitchell, a remand is necessary in order for the examiner to elicit additional information regarding flares, the point at which pain limits the Veteran movement, to address passive ranges of motion, and to estimate the Veteran's functional loss based on all the evidence of record, including, but not limited to, the Veteran's own statements. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to assess the current severity of his service-connected IVDS, or by other means if an in-person examination is not feasible. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. Specifically, the examiner must test the Veteran's active motion, passive motion, ranges of motion of the opposing joint, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups during the appeal period beginning in 2010. (a.) In addressing the above, the examiner should review the August 2010, December 2010, April 2014, and August 2019 VA examination reports, along with the Veteran's January 2018 Board testimony, and attempt to estimate ranges of motion during flare-ups, as it was in August 2010, December 2010, April 2014, and August 2019. Additionally, the examiner should attempt to estimate at what point in the range of motion the Veteran experienced limited motion specifically attributable to pain, in August 2010, December 2010, April 2014, and August 2019. If this information cannot be obtained or determined, the examiner should give a detailed explanation why. To the extent possible, the examiner should identify any symptoms and functional impairments due to the service-connected spine disability and discuss the effect of the Veteran's service-connected disability on any occupational functioning and activities of daily living. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, 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.