Citation Nr: 21012971 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-15 942 DATE: March 8, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for a low back disability is remanded. Entitlement to service connection for radiculopathy of the left lower extremity is remanded. Entitlement to service connection for radiculopathy of the right lower extremity is remanded. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for a low back disability 2. Entitlement to service connection for radiculopathy of the left lower extremity 3. Entitlement to service connection for radiculopathy of the right lower extremity In a January 2020 Board remand, it was determined that the July 2015 and February 2017 VA examinations were insufficient for adjudication. More specifically, the claims were remanded for an examination that addressed the severity of the back disability, including any flare-ups and for range of motion testing on active and passive motion and for weight-bearing and nonweight-bearing. 38 C.F.R. §4.59; Correia v. McDonald, 28 Vet. App.158 (2016); Sharp v. Shulkin, 29 Vet. App.26 (2017). In a March 2020 VA examination, the Veteran reported meeting with a chiropractor once a month and taking medication for back pain. The Veteran described a constant aching pain in the low back that increased with standing for 10 to 15 minutes, sitting for 10 to 15 minutes, with weather changes, and cold weather, and which caused sleep disturbance. Initial range of motion measurements showed forward flexion to 90 degrees; extension to 20 degrees; right lateral flexion to 30 degrees; left lateral flexion to 30 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. Pain was noted on examination in forward flexion and extension but did not result in functional loss. There was objective evidence of mild localized tenderness or pain on palpation in the bilateral paraspinal muscles. There was no evidence of pain with weight-bearing. Following repetitive-use testing, range of motion measurements showed forward flexion to 65 degrees; extension to 25 degrees; right lateral flexion to 30 degrees; left lateral flexion to 30 degrees; right lateral rotation to 30 degrees; and left lateral rotation to 30 degrees. Pain and lack of endurance contributed to functional loss following repetitive-use testing. Fatigue also contributed to functional loss with repeated use over a period of time. There was no guarding or muscle spasm of the back, no muscle atrophy, no intervertebral disc syndrome, and no ankylosis of the spine. The examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. There was no objective evidence of pain in nonweight-bearing. However, the examiner did not perform passive range of motion testing. The reason provided was that it could not be performed or was not medically appropriate, but that was not explained. The January 2020 examiner was instructed to test the range of motion on active motion and passive motion, and for weight-bearing and nonweight-bearing. If the examiner was unable to conduct the required testing or conclude that the required testing is not necessary in this case, the examiner was asked to clearly explain why that was so. In the March 2020 VA examination, the examiner merely stated that it could not be performed or was not medically appropriate. No further explanation was provided. Therefore, there has not been substantial compliance with the Board’s previous remand directives regarding the claimed disability.  Therefore, remand is required for a complete opinion.  Stegall v. West, 11 Vet. App. 268 (1998). Also, because the Veteran claimed service connection for her disabilities of right lower extremity radiculopathy and left lower extremity radiculopathy as secondary to her back disability, the issues of service connection for disabilities of right lower extremity radiculopathy and left lower extremity radiculopathy are inextricably intertwined with the issue of increased rating for a back disability as the examination will provide information about any radiculopathy. Thus, it would be premature for the Board to decide the claims of service connection for the Veteran’s disabilities of right lower extremity radiculopathy and left lower extremity radiculopathy at this time. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination to determine the current severity of a service-connected back disability and whether there is any resulting lower extremity radiculopathy. The examiner must review the claims file and should note that review in the report. The examination should be conducted by a VA medical doctor examiner who has not previously examined the Veteran, and the examiner must review the claims file in conjunction with the examination. (a.) The examiner should confirm being a medical doctor who has not previously examined the Veteran. (b.) The examiner should describe the nature and severity of all manifestations of the service-connected back disability. The examiner should record the range of motion observed on clinical evaluation. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree of range of motion at which pain begins. The extent of any weakened movement, painful motion, excess motion, fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The should specify the degree of additional functional loss or loss of range of motion due to pain, to include during flare-ups, or provide an estimate based on interview of the Veteran. The examiner must comment on the functional impairment caused by the back disability. The examiner should describe what, if any, impact the Veteran’s back disability has on her ability to work or perform occupational tasks. (c.) The examiner must test the range of motion on active motion and passive motion, and for weight-bearing and nonweight-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 explain why that is so, and should provide an estimate of range of motion. (d.) The Veteran has reported flare-ups of back symptoms. The examiner must comment on additional functional loss during flare-ups. If the examiner determines the Veteran is not currently having a flare-up, the examiner should ascertain adequate information such as frequency, duration, characteristics, severity, or functional loss during flare-ups by alternative means, such as interviewing the Veteran. The examiner must offer an estimate as to additional functional loss during flare-ups regardless of whether the Veteran is undergoing a flare-up at the time. (e.) The examiner must provide a comprehensive report including a complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cross, 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.