Citation Nr: 21006586 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 16-40 246 DATE: February 4, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to December 3, 2019, and in excess of 20 percent as of December 3, 2019, for a back disability is remanded. REASONS FOR REMAND The Veteran had active service from January 1986 to May 2008 and from November 2009 to September 2013. In April 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In September 2019, the Board remanded the case for additional development. Unfortunately, remand is again necessary to ensure that there is a complete record upon which to decide the claim. Entitlement to a rating in excess of 10 percent prior to December 3, 2019, and in excess of 20 percent as of December 3, 2019, for a back disability is remanded. The Veteran was provided VA examination in December 2019 for a service-connected back disability. Passive range of motion testing was not included in the findings. While the examiner noted pain with passive range of motion, the examiner did not indicate whether passive range of motion testing was performed. The Board finds the examination to be incomplete. When VA obtains an examination or opinion, the examination or opinion must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, the October 2016 examiner found a history of flare-ups. The examiner stated that it was not possible to state whether the Veteran had additional limitation of function due to flare-up without resorting to mere speculation. The December 2019 examiner did not provide an opinion for any additional losses of function or motion during flare-ups. No rationale was provided. An opinion is speculative when it is based on the absence of procurable information or an examiner's shortcomings or general aversion to offering an opinion on issues not directly observed. Direct observation of functional impairment during a flare-up is not a prerequisite to offering an opinion. Examiners should offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of Veterans. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board finds that remand is necessary to assess the current severity of the lumbar spine disability, to include passive and active and weight-bearing and non-weightbearing range of motion testing, and an evaluation of functional loss during flare ups. Clinical documentation after June 2020 is not of record. VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: (Continued on the next page)   1. With any necessary authorization from the Veteran, obtain any relevant, outstanding VA or private treatment records. 2. Schedule the Veteran for VA orthopedic examination to determine the current severity of a service-connected lumbar spine disability. The examiner must review the claims file and should note that review in the report. All indicated tests and studies should be accomplished, and all clinical findings must be reported in detail. The examiner should state all examination findings, with the rationale for the comments and opinions expressed. The physician must conduct range of motion testing for active and passive motion and weight-bearing and nonweight-bearing of the lumbosacral spine, expressed in degrees. If pain on motion is observed, the physician should indicate the point at which pain begins. In addition, the physician should indicate whether, and to what extent, the Veteran experiences functional loss of the lumbar spine due to painful motion, weakened motion, excess motion, fatigability, incoordination, on flare-ups, or with repeated use. The examiner should specifically state whether or not there is muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis, or has been since September 29, 2013. The examiner should state whether there are incapacitating episodes of intervertebral disc syndrome requiring treatment by a physician and bed rest, and if so, should state the duration of those episodes in a 12 month period. Based on review of the record and interview with the Veteran, for the period since September 29, 2013, the examiner should provide a retrospective opinion about functional limitation during flare-ups. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals 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.