Citation Nr: 21009189 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 10-15 070 DATE: February 19, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for the Veteran's service-connected lower back condition is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1996 to March 1997. She also had unverified Reserve service, to include a period of active duty for training (ACDUTRA) from May 1990 to September 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of an April 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board denied the Veteran’s above claim in an October 2019 decision. The Veteran then appealed to the United States Court of Appeals for Veteran’s Claims (CAVC), and in July 2020 CAVC vacated the October 2019 Board decision, granted a joint motion for remand, and returned the case to the Board for action consistent with the joint motion for remand. Remand While the Veteran was provided with June 2013, April 2015, and April 2019 VA examinations regarding her back condition, these examinations are inadequate for rating purposes. In proffering their opinions; the June 2013 examiner failed to evaluate the Veteran’s functional loss during flare-ups. The April 2015 examiner failed to explain why he could not speculate as to the additional range of motion loss during the Veteran’s periods of flare ups. Further the April 2015 and April 2019 VA examiners failed to describe the point in the Veteran’s range of motion that limitation of motion was attributable to the Veteran’s pain. As such, the VA examiners did not adequately assess the Veteran’s functional loss of her lower back disability in compliance with the holdings in DeLuca v. Brown, 8 Vet. App. 202, 206 (1995), Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Therefore, the Board finds an additional examination is required to adequately assess the Veteran’s lower back disability. The matters are REMANDED for the following action: Schedule the Veteran for an appropriate VA examination, with an examiner who has yet to examine the Veteran, to determine the current nature and severity of her lower back disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. The examiner should review this remand in its entirety, and the examiner should review the Veteran’s lay reports of her flare-ups and the clinical findings on examination and opine on the functional impact of the Veteran’s reported flare-ups. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. Further, the examiner should describe the point in the Veteran’s range of motion that limitation of motion is attributable to the Veteran’s pain. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.