Citation Nr: 21077149 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 10-29 463 DATE: December 28, 2021 REMANDED Entitlement to a rating in excess of 20 percent prior to September 16, 2019, and in excess of 40 percent thereafter, for service-connected thoracolumbar spondylosis is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from August 1978 to May 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision issued by the Department of Veterans Affairs (VA). In June 2017, the Board denied the claim for higher staged ratings for the lumbar spine disorder. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Court granted a Joint Motion for Partial Remand (JMPR) in which the parties agreed that the Board did not ensure that an adequate medical opinion was obtained regarding the Veteran's reported flare-ups consistent with the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). In November 2018, the Board remanded the claim for further development. In August 2020, the Board again denied the claim for higher staged ratings for the lumbar spine disorder. The Veteran appealed the Board's decision to the Court. In August 2021, the Court granted a Joint Motion for Remand (JMR) in which the parties agreed that the Board did not ensure that an adequate medical opinion was obtained regarding the severity of the Veteran's lumbar spine disorder. Also, the parties agreed that the Board erred when it did not provide an adequate statement of reasons or bases for its denial of entitlement to higher staged ratings for a lumbar spine disorder. Increased Ratings In November 2018, the Board remanded the issue to obtain a VA examination and directed the examiner to "test the range of motion in active motion, passive motion, weightbearing, and nonweight-bearing. The Veteran was provided a VA examination for his lumbar spine disorder in September 2019. The examiner did not provide range of motion (ROM) measurements "for pain on both active and passive motion [and] in weight-bearing and nonweight-bearing." See Correia v. McDonald, 28 Vet. App. 158 (2016); Stegall v. West, 11 Vet. App. 268 (1998). The examiner indicated that "[p]assive ROM of the spine was not performed as it is not feasible to do this in a safe and reasonable manner" and that "[n]on-weight bearing assessment is not applicable [because] [t]here is no objective evidence of pain when the spine is in a non-weight bearing position at rest." However, the examiner should have measured the ROM for each criterion whether or not there is pain at rest. Correia, 28 Veltap. at 170. Therefore, in the August 2021 JMR, the parties agreed that there was not substantial compliance with the remand directives and remand is required on that basis. See Stegall, 11 Vet.App. at 271. Accordingly, a remand is necessary to ensure substantial compliance with the November 2018 remand directives. In the August 2021 JMR, the parties further agreed that a retrospective opinion was warranted to assess the Veteran's lumbar spine disorder at the time of the August 2015 and March 2017 examinations to include whether the Veteran had additional functional loss or limitation of motion during flare-ups as a result of pain. See May 2018 JMPR and August 2021 JMR. Additionally, in the August 2021 JMR, the parties agreed that the Board shall ensure that the Veteran's January 2015 treatment from Guise Chiropractic Care, LLC, is scanned into the record. The August 2015 VA examination indicates "PTRS Chiropractic exam note 1/05/2015 indicates back pain since 1978 with 6 knots in LSM with modality treatment." Also, a January 2015 Non-VA Care Consult Result Note indicates that the January 5, 2015 visit was completed and stated "[s]ee scanned document for report." A remand is necessary to ensure this record is scanned into the Veteran's claims file. The matters are REMANDED for the following action: 1. Obtain any outstanding records from VA or private health care providers, including treatment records dated January 5, 2015 from Guise Chiropractic Care, LLC and PRTS chiropractic examination note. See August 2021 JMR, August 2015 VA examination, and January 2015 Non-VA Care Consult Result note. With the Veteran's assistance, obtain copies of any pertinent records and scan them to the claims file. 2. Schedule the Veteran for a VA examination to determine the current severity of the Veteran's lumbar spine disability (lumbar spondylosis). The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. Please review the May 2018 JMPR and August 2021 JMR. The examiner should obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flare-ups from the Veteran himself. The examiner should elicit relevant information as to the Veteran's flares with a description of the additional functional loss, if any, the Veteran has during flares. The examiner should estimate the Veteran's functional loss due to flares based on all the evidence of record-including the lay information or sufficiently explain why the examiner cannot do so. (a.) Taking into account the evidence in the claims file and the Veteran's lay statements, the examiner must determine the current severity of the Veteran's lumbar spine disability, and any impairment on activities of daily living and capacity for occupational activities. (b.) The examiner is directed to test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. 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 explain why that is so. (c.) The examiner is directed to provide a retrospective opinion to assess the severity of the Veteran's lumbar spine disorder at the time of the August 2015 and March 2017 examinations to include whether the Veteran had additional functional loss or limitation of motion during flare-ups as a result of pain. The examiner should also, in accordance with DeLuca v. Brown, 8 Vet. App. 202 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32 (2011) indicate whether the Veteran's lumbar spine disability is productive of any functional loss in the form of weakened movement, including weakened movement against varying resistance, excess fatigability with use, incoordination, painful motion, pain with use, and provide an opinion as to how these factors result in any additional limitation of motion or additional functional loss. In doing so the examiner must address any increased functional loss during flare-ups. Additionally, if feasible, the examiner should describe any functional loss during flare-ups and otherwise in terms of additional loss of range of motion. If such range-of-motion testing is not included, the examiner should provide a clear explanation as to why. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If it is not possible to provide an opinion regarding symptoms 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). James Springer Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Crohe, L. 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.