Citation Nr: 21005535 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 13-21 917A DATE: February 1, 2021 REMANDED A rating higher than 20 percent for mechanical low back pain, status post discectomy, is remanded. REASONS FOR REMAND The Veteran had honorable active duty service from November 1989 to May 1994. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony at a personal hearing before the undersigned Veterans Law Judge in August 2016. A transcript is of record. The claim was remanded by the Board in February 2018 and denied in May 2019. The Veteran appealed the Board's May 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In a July 2020 Joint Motion for Remand, the parties requested that the Court vacate the May 2019 Board decision that denied a rating higher than 20 percent for mechanical low back pain, status post discectomy. In a July 2020 Order, the Court granted the Joint Motion.   1. A rating higher than 20 percent for mechanical low back pain, status post discectomy, is remanded. The Joint Motion determined that on remand, the Board will ensure that the Veteran is provided with a new VA medical examination that conducts the testing required under § 4.59 and Correia v. McDonald, 28 Vet. App. 158 (2016), and addresses additional functional loss, if any, upon repeated use over time and during flares in terms of additional limitation of motion in degrees, or provides a sufficient explanation as to why such information cannot be provided pursuant to Jones v. Shinseki, 23 Vet. App. 382 (2010) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Updated VA treatment records should also be obtained. The matters are REMANDED for the following action: 1. Obtain updated VA treatment records and associate them with the claims file. If no records exist, the claims file should be annotated to reflect such. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected low back disability. The claims file should be reviewed in conjunction with the examination. All indicated tests should be conducted and the results reported. Range of motion testing should be undertaken and should be tested actively and passively, in weight bearing, and after repetitive use. The examiner should state whether there is likely to be additional range of motion loss due to flare-ups and due to pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. 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. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). If any requested testing is determined to be infeasible, the examiner must provide an explanation as to why that determination was made. The examiner is also asked to address the Veteran’s report of constant pain that interrupted his sleep and whether this equates to objective evidence of pain in a non-weight bearing position. 3. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Van Wambeke, 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.