Citation Nr: 21012888 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 12-00 171 DATE: March 5, 2021 ORDER For the period between November 7, 2009 and January 2, 2020, entitlement to an increased evaluation of 50 percent, but no higher, for a service-connected psychiatric disorder is granted. For the period since January 2, 2020, entitlement to an increased evaluation for a service-connected psychiatric disorder, currently rated as 30 percent disabling, is denied. REMANDED Entitlement to an increased rating for a lumbar spine disability, currently rated as zero percent disabling before May 13, 2016 and as 10 percent disabling since then, is remanded. FINDINGS OF FACT 1. Between November 7, 2009 and January 2, 2020, the evidence is at least evenly balanced as to whether the symptoms of the Veteran’s service-connected psychiatric disorder most closely approximated occupational and social impairment with reduced reliability and productivity due to such symptoms as panic attacks more than once a week. 2. For the period since January 2, 2020, the symptoms of the Veteran’s service-connected psychiatric disorder most closely approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, and chronic sleep impairment. CONCLUSIONS OF LAW 1. Between November 7, 2009 and January 2, 2020, the criteria for an increased evaluation of 50 percent, but no higher, for a service-connected psychiatric disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Codes (DCs) 9411, 9440. 2. For the period since January 2, 2020, the criteria for an increased evaluation for a service-connected psychiatric disorder, currently rated as 30 percent disabling, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, DCs 9411, 9440. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army National Guard and Army Reserve. He had periods of active duty from May to October 1979, February 1984 to September 1985, June to December of 1991, November 2002 to November 2003, January to July of 2004, and August to November of 2009. This case comes to the Board from a January 2011 decision of the Agency of Original Jurisdiction (AOJ). That decision decided seventeen separate claims for benefits. Most of these have been resolved and are no longer part of this appeal, having been decided either by the Board, in a decision and remand issued by the in March 2018, or in various favorable decisions of the AOJ. In November 2019, when the Board most recently remanded this case, the issues on appeal, in addition to the two listed above, included a claim for service connection for a skin disorder. In August 2020, the AOJ granted the skin disorder claim. Since then, only the psychiatric and lumbar spine increased rating claims remain part of this appeal. In July 2017, the Veteran testified before the undersigned at a videoconference hearing. A transcript of that hearing is of record. Rating Criteria for the Veteran’s Service-Connected Psychiatric Disorder Disability ratings are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Within the applicable appeal period, the Board may consider whether separate ratings may be assigned for separate periods of time a practice known as staged ratings, whether or not the claim concerns an initial rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The AOJ assigned a 30 percent rating pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9440 (“Chronic adjustment disorder”). Subsequent examination reports suggest that posttraumatic stress disorder (PTSD) (Diagnostic Code 9411) may be the more appropriate diagnosis. Under either DC 9411 or 9440, a 30 percent rating is authorized for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal) due to such symptoms as: depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. Id. A 70 percent rating for is authorized when psychiatric symptoms cause occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013), the U.S. Court of Appeals for the Federal Circuit stated that a veteran may qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, “or others of similar severity, frequency, and duration.” Id. Factual Background After he filed his initial compensation claim for a psychiatric disorder, the AOJ arranged for a psychologist to examine the Veteran. The examiner’s report, dated December 2010, includes a diagnosis of adjustment disorder with mixed anxiety and depression. The psychologist described the Veteran as well-groomed and cooperative, although his mood was mildly irritable. His attention, memory, and judgment appeared to be within normal limits. He denied suicidal or homicidal ideation. He also denied experiencing hallucinations or delusions. Most of the report explains the Veteran’s feelings of anxiety about a series of legal and administrative disputes over the use of government funds for living expenses during the latter part of his military service. He complained to the psychologist about the performance of attorneys who represented him in these disputes and indicated that it bothered him that he felt the need to supervise their work. At the time of the examination, the Veteran was divorced, but said he had a good relationship with his adult son. The Veteran was unemployed. He told the examiner that he had been in the process of securing a highly paid position working in Afghanistan, but the legal disputes noted above had the effect of disrupting this arrangement. According to the examiner, there was no apparent impairment in the Veteran’s thought process or communication. Likewise, there was no impairment in his ability to perform activities of daily living. In the examiner’s opinion, the severity of the Veteran’s symptoms most closely approximated the criteria for the currently assigned 30 percent rating – i.e., occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The claims file includes also includes outpatient mental health notes. In December 2011, his VA psychiatrist wrote that the Veteran’s main complaints were panic attacks and “problems with temper.” The psychiatrist wrote that the Veteran “has had fleeting suicidal ideation in the past without any plan or intent. In terms of panic attacks, he does report having panic attacks on a nightly basis. These typically wake him up.” He visited a psychiatrist again in January 2012. The note indicates a diagnosis of major depressive disorder and panic disorder. But he denied having thoughts of suicide or of harming others. Another psychiatry note, dated February 2012, indicates that the Veteran was tolerating his medication well. Once again, he denied suicidal ideation, homicidal ideation, and auditory or visual hallucinations. The psychiatrist described him as articulate, well-groomed, and polite. In May 2016, there was another VA mental illness examination. Once again, the examiner provided a report indicating a diagnosis of adjustment disorder. The examiner’s assessment was that the severity of the Veteran’s symptoms most closely approximated the criteria for a 10 percent rating – i.e., mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. The Veteran told the examiner that he lived alone. Before then he had lived with a friend, who had committed suicide approximately two months earlier, and the Veteran had been “taking care of my mother and father for a while.” He still enjoyed a good relationship with his son. With respect to mental health treatment, the report indicates that the Veteran had three visits to a VA outpatient clinic in 2011 and 2012, where he was prescribed Celexa. After that, he said he had been treated by Dr. C.J., a psychiatrist in private practice. The May 2016 examiner identified the symptoms of the Veteran’s adjustment disorder as anxiety and depressed mood. The examiner wrote that, during the interview, the Veteran was “irritable, brusque” and “only minimally cooperative…” When asked about his symptoms, he would usually reply that the requested information was already in his records. The Veteran’s speech was spontaneous and normal. There was no sign of psychosis. In the “remarks” section of the report, the examiner mentioned panic attacks and difficulty sleeping. The Veteran told the examiner, “I feel like I am in a cage. I have son I am trying to help who lost his mother . . . If it wasn’t for him I might go ahead and do it (commit suicide) and take other people out with me. . . (He denied plan or intent to harm others, and he denied history of self-harm).” The Veteran also told the examiner that, “I am trying to take care of a mother and father who [are] 80 and 90 years old.” The examiner wrote that, because of the Veteran’s reluctance to discuss his symptoms, “the assessment may not have fully depicted his current emotional functioning.” The Veteran submitted disability benefits questionnaire, apparently prepared by his private psychiatrist, Dr. C.J., in November 2016. The AOJ did not receive this document until July 2017. According to the questionnaire, the diagnosis was posttraumatic stress disorder (PTSD). Dr. C.J.’s report indicates the presence of many highly severe psychiatric symptoms: suicidal ideation, impaired impulse control such as unprovoked irritability with periods of violence, and near-continuous panic and depression affecting the ability to functioning independently, appropriately and effectively. According to Dr. C.J., the severity of these symptoms most closely approximated the criteria for a 70 percent rating – i.e., occupational and social impairment with deficiencies in most areas. The Veteran submitted a letter from Dr. C.J., likewise dated November 2016. It seems that the purpose of the letter was to demonstrate that the Veteran’s psychiatric disorder is related to his active duty service, an issue which had already been resolved in his favor. With respect to current symptoms, the letter mentions depression, insomnia, anxiety, and panic attacks. During the videoconference hearing in July 2017, the Veteran testified that, after an overseas deployment in 2003, he complained of anxiety and nervousness. He mentioned that, in his post-deployment assessment, he mentioned anxiety and panic attacks. When asked if he generally would get along well with other people, he replied, “No, not really.” He said he had been receiving treatment from Dr. C.J. for five years. The Veteran denied having ever been hospitalized for a psychiatric condition. He also discussed the need to take care of his elderly parents. In March 2018, the Board remanded the psychiatric claim, instructing the AOJ to obtain the Veteran’s treatment records from Dr. C.J. In March 2019, the AOJ mailed an appropriate letter, asking the Veteran to authorize VA to obtain these records. The Veteran provided the requested authorization in April 2019 along with a short letter which reads, “During one of my visits in the fall of 2018 [Dr. C.J.’s] office informed me they had misplaced my file. I had to start a new file in 2018.” Pursuant to the authorization, the AOJ obtained documents including only five pages of treatment records from Dr. C.J. One page is a list of the Veteran’s medications. There are also notes concerning two office visits, dated September 2018 and April 2019. For both appointments, Dr. C.J. marked a box next to pre-printed text indicating that the Veteran’s condition was stable. On both occasions, he also marked a box next to pre-printed text indicating “check if no change since last visit…” During both appointments, Dr. C.J. apparently wrote a large note “OK” and drew a line through a long list of pre-printed symptoms including “Suicidal Ideation _ Present _ Absent.” Although Dr. C.J. did not indicate a mark on the form to indicate that suicidal ideation was present or absent, the Board finds that the large handwritten note “OK” is best understood to mean that the Veteran was not experiencing suicidal ideation at the time of his September 2018 and April 2019 psychiatry appointments. The AOJ arranged for another psychologist to examiner the Veteran in May 2019. The examiner’s report indicates a diagnosis of PTSD and that the Veteran “struggles as a caregiver for his 94 year old father recovering [from a] heart attack and 84 year old mother who was diagnosed with cancer.” He told the examiner that, “[Dr. C.J.] diagnosed me with PTSD in 2016, but he has lost his records.” The May 2019 examiner identified these symptoms: depressed mood, anxiety, and panic attacks more than once a week. During the examination interview, the Veteran was “irritable and withdrawn. He was appropriately dressed and groomed. His affect was normal.” According to the examiner, the severity of the Veteran’s symptoms most closely approximated the criteria for a 10 percent rating – i.e., occupational and social impairment due to mild or transient symptoms. In November 2019, the Board remanded the psychiatric claim to obtain an opinion attempting to reconcile the highly severe symptoms described in Dr. C.J.’s November 2016 report with the milder symptoms described in the prior and subsequent reports. The Board asked the post-remand examiner to consider the possibility that one or more of the previous examiners may have made mistakes as well as the possibility that the Veteran’s symptoms may have significantly improved or worsened at different times during the proceedings. The most recent examination took place in January 2020. The examiner’s report indicates a diagnosis of PTSD. The examiner wrote that, since the previous examination, “[the Veteran] continues to live alone [and] was taking care of his elderly parents. However, [his] mother died [two] months ago at age 87 so now he is just taking care of his father who is 97.” The Veteran told the examiner he sees his adult son a few times a year. He said he visits his sister regularly and “has a few local friends.” The Veteran told the examiner that he has not been employed since 2010 because “he doesn’t like to deal with people.” But he also said he had been helping his sister managing five properties that she owns. He said “he does well at taking care of” his sister’s real estate investments. The Veteran told the examiner that, when his sister’s husband died one and a half years earlier, he “had to handle all the details of the funeral. He says he often has to rise to the occasion to get such big projects done [and] that he can be very competent when he needs to.” The examiner described “what sounds like occasional panic attacks” and, during these episodes, the Veteran perceived his heart racing and his hands sweating. He told the examiner that his most recent panic attack was more than a month ago. According to the examiner, the Veteran “denies any temper problems where he impulsively lashed out for many years [and] describes himself as having very good self-control [and] as generally not ever showing his internal emotions.” The examination report identified his current symptoms as anxiety, suspiciousness, panic attacks weekly or less often, and chronic sleep impairment. In the “remarks” section of the January 2020 report, the examiner complied with the Board’s request to attempt to reconcile inconsistent descriptions of the severity of the Veteran’s symptoms over time. In the examiner’s opinion, PTSD was the appropriate diagnosis and the Veteran no longer met the criteria for adjustment disorder with chronic anxiety and depression. The examiner administered a test intended to help assess the severity of PTSD and other mental health disorders, which is designed to detect if the patient is “trying to misrepresent themselves (i.e., ‘faking good or bad’).” According to the examiner, the test results suggested “mild PTSD [and] . . . general irritability.” The results, the examiner explained, also indicated that the Veteran attempted the test “with a straightforward, reasonable mindset” and was not attempting to misrepresent the severity of his symptoms. The January 2020 examiner wrote that it was difficult to assess the validity of the symptoms suggested by Dr. C.J. because “his clinical notes which would have had more detail, were reported to be mysteriously lost.” The January 2020 examiner described the Veteran’s answers to questions about the specific symptoms identified by Dr. C.J. in the November 2016 questionnaire. The Veteran apparently told the examiner that he had not experienced “[poor] impulse control/violence” or poor judgment “for many years if at all.” According to the examiner, “the symptoms of inability to handle stress or relationships are also not supported due to the above report of [the Veteran] having some relationships [and] of managing high stress situations such as 2 funerals completely on his own.” The examiner indicated that the other symptoms noted on Dr. C.J.’s report were “not present” and he suggested that the Veteran’s “evasive, cryptic style of expressing his feelings” may have caused Dr. C.J. to misinterpret the Veteran’s responses to certain questions. With one exception, the examiner opined that the May 2019 examination report provided an accurate description of the Veteran’s symptoms. To the symptoms listed in that report, the January 2020 examiner added “the symptom of chronic sleep impairment which is documented.” Analysis As a preliminary matter, the Board finds that the January 2020 examiner’s report is adequate and substantially complied with the November 2019 request for an opinion clarifying the inconsistencies in the severity of the symptoms described in Dr. C.J.’s November 2016 questionnaire and the other medical evidence. It seems that the January 2020 examiner did everything he could to reconcile these discrepancies. He reviewed the reports from Dr. C.J. and from the earlier VA examiners and asked the Veteran questions about the specific symptoms which were reported by Dr. C.J. but not by prior or subsequent examiners. As the January 2020 report explained, when he was answering these questions, the Veteran denied having experienced impaired impulse control (such as unprovoked irritability with periods of violence) “for many years if at all.” The other symptoms which had been noted by Dr. C.J. but not by the subsequent May 2019 VA examiner, according to the January 2020 examiner, were “not present.” The January 2020 examiner also seems to have undertaken a careful and critical review of the May 2019 report, noting that it should be amended to add chronic sleep impairment. To the extent that they are in conflict, the Board further finds that the report of the January 2020 examiner is more persuasive, and should be assigned more significant probative weight, than the questionnaire prepared by Dr. C.J. in November 2016. The January 2020 examiner’s careful explanation of his interview with the Veteran supports this finding, and so do at least two other circumstances. First, at least with respect to this patient, Dr. C.J. does not seem to have been a very careful recordkeeper. As the Veteran explained in his April 2019 letter, Dr. C.J. lost all records of his treatment before 2018. And the two progress notes which Dr. C.J. eventually provided, dated September 2018 and April 2019, do not mention any of the severe psychiatric symptoms noted in the November 2016 questionnaire (suicidal ideation, impaired impulse control such as unprovoked irritability with periods of violence, and near-continuous panic and depression affecting the ability to functioning independently, appropriately and effectively). Secondly, the Veteran’s hearing testimony in July 2017 is closer to the January 2020 examiner’s assessment of his psychiatric symptoms than it is to the assessment provided by Dr. C.J. in November 2016. In response to general, open-ended questions about how his psychiatric symptoms affected him, the Veteran mentioned anxiety, nervousness, and having difficulty getting along with others. But he never mentioned suicidal ideation or impaired impulse control, uncontrolled irritability, periods of violence, or continuous panic. Given the functionally disabling effects of these symptoms, one would expect them to be among the symptoms to occur to someone who is asked to describe their symptoms in general terms. Under these circumstances, the Veteran’s failure to mention them in his testimony is significant. As noted, suicidal ideation is one of the symptoms listed in the criteria for a higher 70 percent rating. See 38 C.F.R. § 4.130. In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the Court reviewed recent literature concerning suicide among veterans, noting that both passive and active suicidal ideation are comprised of thoughts: passive suicidal ideation entails thoughts such as wishing to be dead, while active suicidal ideation entails thoughts of self-directed violence and death. Id. at 20. The Court explained that because suicidal ideation appears only in the 70 percent evaluation criteria, with no less severe analogues at a lower level of evaluation, the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas. Id. In other words, “suicidal ideation” as the term is used in the rating criteria, includes passive suicidal ideation and does not require any specific intent or plan to commit suicide. Under this interpretation, the statement the Veteran made to the May 2016 examiner about his son arguably indicates an episode of suicidal ideation: “I have son I am trying to help who lost his mother... If it wasn’t for him I might go ahead and do it (commit suicide) and take other people out with me... (He denied plan or intent to harm others, and he denied history of self-harm).” If episodes of this kind were typical of the Veteran’s psychiatric condition throughout the relevant appeal period, or for a specific discernible interval within that period, it might be appropriate to increase the previously assigned disability rating to 70 percent based on the presence of suicidal ideation. But the Board’s review of all the evidence suggests that these thoughts were unusual. Indeed, the records indicate that he was not experiencing suicidal ideation in December 2010, December 2011, January 2012, February 2012, September 2018, April 2019, May 2019, and January 2020. As noted, during the December 2011 psychiatry appointment, the Veteran mentioned having had fleeting suicidal ideation at some unspecified time in the past (whether they occurred during the relevant appeal period is unclear) but denied suicidal ideation during the appointment. The issue in this case depends on whether the Veteran’s symptoms most closely approximated the criteria for an increased disability rating for his service-connected psychiatric disorder. While his statement to the May 2016 examiner suggests that he may have been experiencing passive suicidal ideation at that time, the preponderance of the evidence is against a finding that his psychiatric symptoms most closely approximated the criteria for a higher rating of 70 percent throughout the appeal period or for any clearly discernible interval of time within the appeal period (November 7, 2009 to the present). Having rejected Dr. C.J.’s suggestion that the severity Veteran’s symptoms most closely approximated the 70 percent criteria, the Board must now consider whether the criteria for a 50 percent rating or for the previously assigned 30 percent rating most closely approximate his psychiatric symptoms. On this question, the frequency of his documented panic attacks is significant. The presence of panic attacks (weekly or less often) is one of the criteria for the previously assigned 30 percent rating while panic attacks more than once a week is listed in the criteria for a 50 percent rating. See 38 C.F.R. § 4.130. According to the VA psychiatry note, dated December 2011, the Veteran was experiencing panic attacks on a nightly basis. Section 3 (“Symptoms”) of the May 2016 VA examination report only identified anxiety and depressed mood. But the “remarks” section of the same report mentioned panic attacks, without specifying how frequently the Veteran experienced them. Dr. C.J.’s November 2016 questionnaire, although unreliable in other respects for the reasons mentioned above, indicates that the Veteran had panic attacks more than once a week. And the May 2019 VA report also indicated panic attacks more than once a week. The January 2020 report includes the most detailed recent description of the nature and frequency of the Veteran’s panic attacks: “[The Veteran] claims to have what sounds like occasional panic attacks where his heart races [and] his hands sweat with the last one being [more than one] month ago.” From the evidence it appears that, by the time of the January 2020 examination, the Veteran was clearly experiencing panic attacks less than once a week. Before then, however, the record documents many episodes of panic attacks, including periods during which they recurred every night or almost every night. The Board therefore finds that, before January 2, 2020, the evidence is at least evenly balanced as to whether the symptoms of the Veteran’s service-connected psychiatric disorder most closely approximated the criteria for an increased 50 percent rating. Resolving reasonable doubt in the Veteran’s favor, the Board will increase his assigned disability rating from 30 percent to 50 percent for the period between November 7, 2009 and January 2, 2020. For the period since January 2, 2020, the preponderance of the evidence favors the conclusion that the Veteran’s symptoms most closely approximated the criteria for the previously assigned 30 percent rating. For this period, the Veteran’s most frequent and significant symptoms were his anxiety, suspiciousness, panic attacks weekly or less often, and chronic sleep impairment. All four of these symptoms are listed in the criteria for a 30 percent rating in 38 C.F.R. § 4.130. In summary, for the period between November 7, 2009 and January 2, 2020, the Veteran’s claim for an increased rating of 50 percent, but no higher, for his service-connected psychiatric disorder is granted. For the period since January 2, 2020, his claim for a rating higher than 30 percent is denied. REASONS FOR REMAND To help decide the claim for an increased rating for the Veteran’s low back disability, the AOJ arranged an examination in January 2020. The examiner’s report includes range of motion test results and other information about the symptoms of the Veteran’s degenerative arthritis of the spine. Pursuant to 38 C.F.R. § 4.59, the examination questionnaire asked the examiner to perform range of motion tests in active and passive motion and in weightbearing and in non-weightbearing. According to the January 2020 examination report, “Passive [range of motion testing] of the spine was not performed as it was not feasible to do this in a safe and reasonable manner.” The examiner also indicated that, “non-weight bearing assessment is not applicable.” “If for some reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in the case, he or she should clearly explain why that is so.” Correia, 28 Vet. App. at 170. Although the January 2020 examiner may be correct that it is not possible to perform passive range of motion testing or range of motion testing in non-weightbearing, the report did not clearly explain the reasons for that conclusion. The Board will therefore remand the lower back increased rating claim for a new examination.   The matters are REMANDED for the following action: 1. Obtain and associate with the claims file copies of all records of the Veteran’s VA medical treatment since May 2019. 2. Schedule a VA examination to ascertain the current severity of the Veteran’s service-connected thoracolumbar spine disability. The VBMS and Virtual VA electronic claims files must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the relevant disability should be identified. In addition to all findings identified on the appropriate examination form, the examiner who completes the questionnaire should determine the effective range of motion in the Veteran’s thoracolumbar spine, and present the results of range of motion tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of range of motion test results, in degrees, for both active and passive motion, and in weight bearing and nonweight-bearing. IF THE EXAMINER BELIEVES THAT TESTING USING ONE OR MORE OF THESE METHODS IS UNSAFE OR IMPACTICAL, HE OR SHE SHOULD CLEARLY EXPLAIN THE MEDICAL REASONS FOR THAT CONCLUSION. The examiner’s report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED RANGE OF MOTION TESTS. If any of these findings are not possible, please provide an explanation. To comply with Sharp v. Shulkin, 29 Vet. App. 26, 33, the examiner should describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability of the lumbosacral spine 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 description of reduced range of motion during flares or repetitive use. If the examiner indicates that pain does not cause functional loss with respect to the lumbosacral spine, he or she should thoroughly explain the medical reasons for that opinion. 3. The AOJ must ensure that the examination report and opinions requested comply with the directives of this remand. If any report or opinion is deficient in any   manner, the AOJ must implement corrective procedures at once. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, 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.