Citation Nr: 21011467 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-55 457 DATE: March 2, 2021 REMANDED Entitlement to a rating in excess of 10 percent for lower back disability prior to October 23, 2017 is remanded. Entitlement to a rating in excess of 20 percent for lower back disability from October 23, 2017 is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1983 to September 1983, from January 2003 to April 2004, from July 2009 to July 2010, and from August 2013 to September 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision granting service connection for low back disability and assigning a 10 percent rating. A June 2019 rating decision increased the Veteran’s disability rating to 20 percent, effective October 23, 2017. As the increase did not represent a full grant of the benefits sought, the claim remained before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). In November 2019, the Board denied ratings in excess of 10 percent prior to October 23, 2017, and in excess of 20 percent thereafter, for the Veteran’s lower back disability. The Veteran appealed to the United States Court of Appeals for Veterans Claims (the Court). In August 2020, the Court granted the parties’ August 2020 Joint Motion for Remand (JMR) to vacate the November 2019 Board decision and to remand the matter for further development and readjudication. 1. Entitlement to a rating in excess of 10 percent for lower back disability prior to October 23, 2017 is remanded. 2. Entitlement to a rating in excess of 20 percent for lower back disability from October 23, 2017 is remanded. As indicated in the August 2020 JMR, the April 2018 VA examiner noted the Veteran’s reported flare-ups and that the examination was conducted during a flare-up and recorded range of motion (ROM) limitation in degrees after both repeated use over time and during flare-ups. However, as indicated by the JMR, the VA examiner also stated that the Veteran could have even further limitation in ROM when he “returns to his usual day to day environment”; the examiner could not express this further limitation “in degrees of motion without resorting to mere speculation.” In Sharp v. Shulkin, 26 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. The April 2018 VA examiner did not provide an adequate explanation as to why estimates on functional loss from his day to day environment could not be provided. In addition, as indicated by the JMR, the October 2017 VA examiner recorded ROM limitation in degrees after both repeated use over time and during flare-ups but did not describe at what point in the range of motion pain began during flare-ups or after repeated use over time. See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Finally, in the JMR the parties agreed that it did not appear that the February 2015, October 2017, and April 2018 VA examination reports provided the requisite Correia testing, which requires that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.” 38 C.F.R. § 4.59; Correia v. McDonald, 28 Vet. App. 158, 170 (2016). For the above reasons, further VA medical assessment is necessary on remand. In addition, review of the Veteran’s VA treatment records shows that non-VA treatment records were scanned into the Veteran’s VA medical file but are not in the Veteran’s claims file. See, e.g., January 2021 VA Treatment Record (noting scanned document relating to community care); October 2020 VA Treatment Record (noting community care with Dr. Rainey for the Veteran’s lower back); August 2020, January 2020, August 2019, November 2018, September 2018, March 2018, November 2016, October 2016, April 2016, October 2014 VA Treatment Record (noting scanned community care records). Accordingly, remand is warranted to obtain such records. The matters are REMANDED for the following action: 1. Obtain any additional VA treatment records, to include VA treatment records from February 2021 to the present. Associate with the claims file all potentially relevant documents scanned into Vista Imaging or CPRS but not associated with the Veteran’s claims file, including the January 2021, August 2020, January 2020, August 2019, November 2018, September 2018, March 2018, November 2016, October 2016, April 2016, and October 2014 community care records scanned into the Veteran’s VA medical records. 2. After outstanding records are obtained to the extent possible, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected low back disability. The examiner should test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly so state and explain why. The examiner should estimate any functional loss in terms of additional degrees of limited motion experienced during flare-ups and after repetitive use over time, based on the Veteran’s description as to the severity, frequency, and duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time, or explain why they cannot. The examiner should consider the April 2018 VA examiner’s note that when the Veteran returns to his usual day to day environment/activities he could potentially have further limitation in range of motion, potentially have an increase in the amount of pain and potentially have further decrease in range of motion, functional capacity during flare ups, and/or with repetitive motion/use over time. If the examiner cannot provide the above-requested estimation without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of the medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. (Continued on the next page)   3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Purcell, 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.