Citation Nr: 21076768
Decision Date: 12/27/21	Archive Date: 12/27/21

DOCKET NO. 16-30 356
DATE: December 27, 2021

REMANDED

Entitlement to a rating in excess of 10 percent for degenerative disc disease of the thoracolumbar spine is remanded.

REASONS FOR REMAND

The Veteran served on active duty from March 2002 to September 2006.

This matter was previously before the Board in August 2020. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2021 order, the Court remanded the case to the Board for action consistent with a July 2021 Joint Motion for Partial Remand (JMPR).

1. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the thoracolumbar spine is remanded.

Unfortunately, there has not been substantial compliance with the Board's previous remand directives. Another remand is required.  Stegall v. West, 11 Vet. App. 268, 271 (1998). In the July 2019 remand, the Board directed the AOJ to obtain a VA

 

medical examination of the thoracolumbar spine which included passive range of motion measurements and testing for pain on weight bearing. The November 2019 VA examination did not indicate whether the provided range of motion measurements were on active or passive motion or weighbearing or non-weight bearing. 

Further, the November 2019 examination does not contain an adequate finding regarding the Veteran's reported flare-ups. 

The matter is REMANDED for the following action:

1. Ask the Veteran to complete a VA Form 21-4142 for any chiropractic care received. Take appropriate actions to attempt to obtain any records from the providers named.

2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected degenerative disc disease of the thoracolumbar spine.  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.  

In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing.  If it is not possible to provide a specific measurement without speculation, the examiner must state the reason.  

In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements.  If it is not possible to provide a specific measurement without speculation, the examiner must state the reason. 

 

 

H. N. SCHWARTZ

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Creegan, Amanda

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.