Citation Nr: 21009983 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-40 195 DATE: February 23, 2021 REMANDED Entitlement to a disability rating in excess of 20 percent for a herniated nucleus pulpous, cervical spine, with degenerative disc disease (DDD) (cervical spine disability) is remanded. Entitlement to a disability rating in excess of 20 percent for a herniated nucleus pulpous, lumbosacral spine, with degenerative disc disease (lumbosacral spine disability) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1968 to April 1971 and from October 1975 to July 1990. This matter comes before the Board of Veteran’s Appeals (Board) from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in April 2018 when the claims were remanded for VA examinations. The Board finds the April 2018 remand directives have not been substantially complied with, and the matters must be remanded again. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to a disability rating in excess of 20 percent for a herniated nucleus pulpous, cervical spine, with degenerative disc disease (DDD) (cervical spine disability) is remanded. 2. Entitlement to a disability rating in excess of 20 percent for a herniated nucleus pulpous, lumbosacral spine, with degenerative disc disease (lumbosacral spine disability) is remanded. The Veteran seeks a disability rating in excess of 20 percent for his cervical spine disability and a disability rating in excess of 20 percent for his lumbosacral spine disability. In April 2018, the Board remanded the Veteran’s claims for updated medical records and contemporaneous examinations. In its directives, the Board specified that the examiner needed to provide range of motion testing for the lumbar and cervical spine, needed to indicate the point at which pain began (expressed in degrees) if pain on motion was observed during the examination and needed to indicate to what extent, the Veteran experienced likely functional loss due to pain and/or any of the other symptoms noted during flareups and/or with repeated use over time. The Board specified that if the examination did not take place during a flareup or after repeated use over time, the examiner needed to attempt to offer an estimate derived from information procured from relevant sources, including the Veteran’s statements, as to the severity of the Veteran’s flareups and/or loss of function following repeated use over time. The Board also cautioned that an examination which did not comply with the requirements, would be found inadequate pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017). See April 2018 Board decision. Pursuant to the Board remand instructions, the Veteran was administered a Neck (Cervical Spine) Conditions Disability Benefits Questionnaire (Neck DBQ) and a Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (Back DBQ) in October 2019. In both examinations, the examiner declined to offer a description of the Veteran’s range of motion during a flareup or after repetitive use and noted that after a review of the Veteran’s records, the reported history, the Veteran’s subjective complaints, and including his medical knowledge and expertise, he had no basis to offer additional losses of function or motion during a flareup or following repetitive use. As these examinations do not comply with the remand instructions and specifically lack an estimate of the Veteran’s range of motion during a flareup and/or following repetitive use; the Board finds the claims must be remanded again for examinations that comply with the Board’s remand directives. Additionally, as the examiner noted that he had no basis to offer the requested estimate despite review of the Veteran’s records, the reported history, the Veteran’s subjective complaints, and including his medical knowledge and expertise; the Board finds the new examination must be completed by a different examiner than the one that administered the October 2019 examinations of record. The Board notes that in its remand instructions, the RO was requested to contact the Veteran regarding additional private medical records for his neck and back disabilities. The RO contacted the Veteran and in March 2020, the Veteran declined to offer additional medical records and noted that he did not want VA to obtain any other records regarding his claims. See report of general information dated March 2020. Accordingly, the Board finds the remand instructions as to the Veteran’s private medical records have been substantially complied with. The matters are REMANDED for the following action: 1. Update VA medical records. 2. Schedule the Veteran for new examinations, with a different examiner, regarding his cervical spine disability and his lumbosacral spine disability. The claims file must be made available to and reviewed by the examiner prior to the examination. All necessary tests should be conducted, and the examiner should review the results of any testing prior to completion of the report. For both disabilities, the examiner is asked to obtain from the Veteran information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment resulting from flare-ups or after repetitive use. The examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran’s description of reduced range of motion during flares or repetitive use. An examination that fails to attempt to ascertain adequate information from relevant sources regarding frequency, duration, characteristics, severity, or functional loss during flare-ups or repeated use over time will be considered inadequate. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner should address the particulars of this Veteran’s medical history and the relevant medical science as applicable to these claims. If the examiner chooses to reject the Veteran’s lay statements or reports, the examiner must provide a reason for doing so. The Veteran’s lay statements must not be rejected due solely to an absence of contemporaneous or corroborating medical evidence. 3. After completing the above requested actions, and any additional notification and/or development deemed warranted, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado 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.