Citation Nr: 21005886 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-10 182 DATE: February 2, 2021 REMANDED The issue of entitlement to an increased rating for a low back disability, rated as 20 percent disabling prior to September 12, 2019 and as 40 percent disabling thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1976 to May 1975 and from March 1980 to October 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Jurisdiction is currently with the RO in Houston, Texas. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via videoconference in November 2019 and a transcript of the hearing has been associated with the claims file. This matter was previously before the Board at which times it was remanded for further development. Entitlement to an increased rating for a low back disability, rated as 20 percent disabling prior to September 12, 2019 and as 40 percent disabling thereafter, is remanded. After reviewing the evidence of record, the Board finds that an additional remand is necessary to obtain an addendum opinion (based on file review only) as the examinations/opinions of record are still inadequate for adjudicative purposes. Specifically, regarding flare-ups, in an April 2020 addendum, an examiner opined that there was insufficient documentation of medical evidence to estimate range of motion for the time period specified. In a September 2020 addendum an examiner opined that he could not comment on estimated limitation of range of motion during a flare-up as there was no literature to support any statement in that regard and it would be impossible for anyone, including a qualified orthopedist to answer such a question. Such findings are contrary to the Court of Appeals for Veterans Claims' (Court) holding in Sharp v. Shulkin. 29 Vet. App. 26 (2017). In Sharp, the Court indicated that, when evaluating musculoskeletal disabilities, Deluca v. Brown, 8 Vet. App. 202 (1995) and its progeny anticipated that VA examiners would need to estimate functional loss that occurred during flare-ups, using information procured from relevant sources of record in addition to examination reports, including lay statements from veterans themselves. 29 Vet. App. at 34-35. As such, the increased rating issue is remanded because examiners did not make the necessary flare-up estimates from relevant sources of record. The matters are REMANDED for the following action: 1. Request that the Veteran provide or authorize VA to obtain records of his relevant treatment that have not yet been associated with the claims file, and associate with the claims file any outstanding VA treatment records. 2. Forward a copy of this remand to a qualified examiner, other than the examiners who rendered the April 2020 and September 2020 opinions, for the purpose of obtaining a retrospective opinion (based on file review only) regarding flare-ups. (a.) The Veteran testified during the November 2019 Board hearing that he experienced a flare-up as a result of the August 2014 VA examination. The September 2020 VA examiner documented that the Veteran reported flare-ups, described as increased pain, since 1978; since 2005 the flare-ups occurred 7-8 times per month and last 1-8 hours. Please state whether it is at least as likely as not (50 percent probability or greater) that during a flare-up range of motion was additionally limited to flexion of 30 degrees or less? Please explain why or why not. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the Agency of Original Jurisdiction (AOJ) should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith-Jennings, 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.