Citation Nr: 21013094 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 17-34 991 DATE: March 8, 2021 REMANDED Entitlement to a rating in excess of 40 percent for lumbar spondylosis, to include whether separate ratings are warranted for radiculopathy, is remanded. REASONS FOR REMAND The Veteran had active service from September 1970 to February 1972. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a Board hearing before the undersigned Veterans Law Judge in November 2020. A transcript of that hearing is of record. See hearing transcript, November 16, 2020. 1. Lumbar Spondylosis The Veteran asserts that a higher rating is warranted for his service-connected lumbar spondylosis. The Veteran also argues that separate ratings are warranted for the radiculopathy he experiences. At the November 2020 hearing, the Veteran asserted that his disability worsened since the last VA examination, which took place in February 2014. The Veteran asserted that he now experienced radiculopathy in his lower extremities due to his back disability. See hearing transcript, November 16, 2020. As such, the Veteran should be scheduled for a new VA examination to assess the current severity of his first back disability. Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a Veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). A United States Court of Appeals for Veterans Claims (Court) decision addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, 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. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Veteran has asserted that he experiences flare-ups of his back disability, which occur when he moves a certain way or sits a certain way. See hearing transcript, November 16, 2020. A VA examiner should, on remand, address any flare-ups claimed by the Veteran, per Sharp. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for an appropriate VA examination to evaluate the current severity of his service-connected back disability. The entire claims file must reviewed, and the examiner must note that review in the examination report. The examiner’s report should reflect consideration of the Veteran’s documented medical history and assertions. All necessary tests and studies should be accomplished, and all clinical findings reported in detail. The examiner should respond to the following: (A) Identify all back orthopedic pathology found to be present. Conduct all indicated tests and studies, to include range of motion studies expressed in degrees and in relation to normal range of motion, and should describe any pain, weakened movement, excess fatigability, and incoordination present. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran’s spine, i.e., the extent of the Veteran’s pain-free motion. (B) The examiner should specifically indicate whether the Veteran suffers from nerve impairments, to include radiculopathy in the lower extremities, due to his lumbar spondylosis. The examiner should note that the Veteran asserted that he now experienced radiculopathy in his lower extremities due to his lumbar spondylosis. (C) Pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016), the examination must record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a joint cannot be tested on “weight-bearing,” then specifically indicate why that testing cannot be done. (D) Pursuant to Sharp v. Shulkin, please inquire whether there are periods of flare-ups. If the answer is “yes,” state their severity, frequency, and duration. Also name the precipitating and alleviating factors. In addition, estimate, “per [the] veteran,” to what extent, if any, they affect functional impairment. The examiner should note that the Veteran did assert that he experiences flare-ups of his service-connected lumbar spondylosis. (Continued on the next page)   The examiner should a detailed clinical history from the Veteran and provide a thorough account and analysis of the manner in which the Veteran’s back disability affects him in his everyday life, particularly the impact that it has on the Veteran’s ability to secure and follow a substantially gainful occupation. A rationale for any opinion offered should be provided. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Lech, 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.