Citation Nr: 21007386 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-39 324 DATE: February 9, 2021 REMANDED A rating in excess of 20 percent for L5-S1 degenerative disc disease of the lumbar spine with mild small disc protrusion is remanded. REASONS FOR REMAND The Veteran served on active duty from January 2001 to January 2004 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. A rating in excess of 20 percent for L5-S1 degenerative disc disease of the lumbar spine with mild small disc protrusion is remanded. In May 2019, the Board denied the claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Court vacated the May 2019 Board decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Remand (Joint Motion). The parties addressed the Veteran’s reports that she is in constant pain which renders her unable to walk at times, feeling temporarily paralyzed, and feeling stuck or immobilized in one position. The parties, citing to Miller v. Wilkie, found that an additional VA examination was required, and that the VA examiner “must address her lay testimony regarding her symptoms.” Miller v. Wilkie, 32 Vet. App. 249 (2020) (holding that VA examiners must address credible lay testimony regarding medical history). In October 2020, the Board remanded the appeal for development consistent with the Joint Motion. In the pertinent remand directive, the Board directed the VA examiner to “consider and comment on the Veteran’s assertions that her range of motion is always changing and that she experienced constant pain, an inability to walk, being temporarily paralyzed, and being stuck in a position.” The Board additionally directed the examiner to take a “detailed clinical history from the Veteran and provide a thorough account and analysis of the manner in which the Veteran’s L5-S1 degenerative disc disease affects her in her everyday life.” While a VA examination was conducted in December 2020, the examiner did not address the Veteran’s lay statements as contemplated by the Joint Motion and as directed by the Board in the underlying remand. Stegall v. West, 11 Vet. App. 268 (1998). The lay statements are not described in any section of the examination report, and the examiner made no comment on them as directed. The examiner also did not obtain a detailed clinical history as contemplated, regardless of the fact that the Veteran apparently denied experiencing flare-ups. A further opinion must thus be obtained. This matter is REMANDED for the following action: Afford the Veteran a VA examination to ascertain the current severity of her L5-S1 degenerative disc disease of the lumbar spine with mild small disc protrusion in accordance with the applicable worksheet for rating the disability. (A.) The examiner must specifically consider and comment on the Veteran's assertions that her range of motion is always changing and that she experiences constant pain, an inability to walk, being temporarily paralyzed, and being stuck in a position. When addressing her lay reports, please note that the Board has previously found several of her statements to be both competent (i.e. admissible) and credible (i.e. worthy of belief). As such, in reviewing and discussing such, please contain your comments as to whether her statements are medically-consistent or medically-inconsistent with the other evidence of record. The opinion requested is a medical one, not a legal one, and one that is based upon your knowledge, training, and experience. 1. (B.) The examiner must note that the Veteran has asserted that she experiences flare-ups of her service-connected lumbar spine disability. The examiner must obtain a detailed clinical history from the Veteran and provide a thorough account and analysis of the manner in which her disability affects her in her everyday life and during any flare-ups of symptoms. If the veteran is not experiencing a flare-up during the examination, the examiner must elicit information from her regarding the severity, frequency, duration, or functional loss manifestations of the flares, or indicate whether such information could be gleaned from medical records or other sources available. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017).Again, if her statements are medically-consistent or medically-inconsistent with the evidence of record, please note such in your discussion. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.