Citation Nr: 21008950 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 14-32 066 DATE: February 18, 2021 REMANDED Entitlement to a rating in excess of 20 percent for lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from January 1996 to June 1996 and from May 2002 to June 2003. In a September 2019 decision, the Board granted a 20 percent rating prior to November 4, 2018 and denied entitlement to a rating in excess of 20 percent for a lumbar spine disability from November 4, 2018. The Veteran appealed that Board decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2020 Order, the Court vacated the September 2019 Board decision, in part, that denied entitlement to a rating in excess of 20 percent for lumbar spine disability and endorsed the findings of a Joint Motion for Partial Remand (Joint Motion) and remanded the claim to the Board for action consistent with the Joint Motion. The parties in the Joint Motion agreed that the Court should not disturb the Board’s September 2019 award of a 20 percent rating for lumbar spine disability prior November 4, 2018. In addition, the Veteran did not challenge the Board’s September 2019 denial of increased ratings in excess of 10 for right and left lower extremity radiculopathy disabilities. Therefore, the appeal of those issues was abandoned by the Veteran and dismissed by the Court. 1. Entitlement to a rating in excess of 20 percent for lumbar spine disability is remanded. In the above-mentioned Joint Motion that was filed with the Court, the Parties agreed that a November 2018 VA examination, which the Board relied on, was inadequate because it did not adequately address the factors set forth in the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The parties to the Joint Motion agreed that the November 2018 VA back examination was inadequate, and because the Court remanded this issue for action consistent with the Joint Motion, the Board finds that this issue must be remanded for a new VA examination consistent with the factors set forth in Sharp. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray 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.