Citation Nr: 21013372 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-46 844 DATE: March 9, 2021 REMANDED Entitlement to a rating in excess of 20 percent for low back strain with degenerative disc disease is remanded. Entitlement to a rating in excess of 20 percent for sciatica of the right lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty in the Army from November 1972 to June 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2019. A transcript of the hearing is of record. In December 2019, the Board remanded these matters for additional development. Once the requested development was accomplished, the RO issued a supplemental statement of the case (SSOC) in July 2020 and returned the matter to the Board. However, since the issuance of the July 2020 SSOC, new evidence has been associated with the record that is relevant to the low back claim on appeal, including a September 2020 MRI of the Veteran’s lumbar spine. In January 2021, the Board sent the Veteran a letter requesting a waiver of initial Agency of Original Jurisdiction (AOJ) consideration of this evidence. The letter advised the Veteran that if he did not respond in 45 days, the Board would assume that he did not want the Board to decide his appeal at this time and remand the appeal to the AOJ for initial review. The Veteran has not responded to the Board's letter and the 45-day time limit has expired. Accordingly, the Veteran's appeal is remanded to the AOJ for readjudication and, if necessary, issuance of an SSOC. See 38 C.F.R. §§ 19.31, 19.37. Unfortunately, the claims on appeal must be remanded for further development. Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide these issues so that the Veteran is afforded every possible consideration. 1. Entitlement to a rating in excess of 20 percent for low back strain with degenerative disc disease is remanded. 2. Entitlement to a rating in excess of 20 percent for sciatica of the right lower extremity is remanded. Pursuant to the Board’s December 2019 remand, the Veteran was afforded a new VA examination to determine the current severity of his low back strain with degenerative disc disease and sciatica of the right lower extremity. However, the examiner was unable to conduct range of motion (ROM) testing due to the Veteran being in pain during the examination. The examiner was also unable to state whether pain, weakness, fatigability or incoordination significantly limit the Veteran’s functional ability with repeated use over time, as the Veteran was unable to perform ROM testing. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Because the January 2020 VA medical opinion is insufficient to fairly adjudicate the Veteran's claim, remand for an adequate medical opinion is necessary. On remand, the Veteran should be afforded a new VA examination by a physician with the appropriate expertise to assess the nature and etiology of any currently-diagnosed back disabilities. The medical opinion must consider and address the Veteran's lay statements as to onset and continuity of symptomatology of his low back disability and sciatica of the right lower extremity. In Correia, the Court held that, pursuant to 38 C.F.R. § 4.59, an adequate VA joint examination must include testing the joint for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of motion of the opposite undamaged joint. At the January 2020 examination, range of motion testing was not conducted due to the Veteran's back pain, as required under Correia. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must estimate the functional loss that would occur during flare-ups. Specifically, examiners must name the precipitating and alleviating factors for the flare-ups and estimate, per the Veteran's reports, the extent to which flare-ups affect functional impairment. The Board notes that in Sharp, the Court, citing Jones v. Shinseki, 23 Vet. App. 382, 390-91 (2010), held that an examiner may not decline to provide an opinion on the basis of speculation unless the examiner has "considered all procurable and assembled data" and offered a basis for this conclusion. 29 Vet. App. at 32. Moreover, it must be apparent that the inability to provide an opinion without speculation reflects "the limitation of knowledge in the medical community at large," as opposed to a limitation of the individual examiner (lack of expertise, insufficient information, or unprocured testing). Id. In light of the above, on remand, the VA examiner must also ensure compliance with the Court's guidance in Sharp. The Board reminds the examiner that failure to comply with the requirements outlined by the Court in Correia and Sharp renders an examination report inadequate and will result in further remand of the Veteran's claims. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA and/or private treatment records. 2. Then, schedule the Veteran for a VA examination with an appropriate medical professional (M.D.) to assess the nature and etiology of any currently-diagnosed low back disability, to include lumbar strain and degenerative disc disease, and sciatic of the right lower extremity. The entire claims file, to include a copy of this REMAND, must be provided to the examiner and reviewed in full. The examiner should consider and specifically address: (a.) the Veteran’s lay statements at the December 2019 hearing regarding falling due to loss of balance and pain and loss of bladder control (b.) the September 2020 lumbar spine MRI results It is imperative that the examiner comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. Further, in accord with the requirements of 38 C.F.R. §4.59, the 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; or an explanation from the examiner that any such testing cannot or should not be conducted. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his low back symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. (Continued on the next page)   A full and complete explanatory rationale must be provided for any opinion offered. If an opinion cannot be provided without resorting to mere speculation, the examiner must fully explain why that is so. 3. Readjudicate the issues with consideration of all evidence associated with the claims file since the July 2020 SSOC. If any benefit sought on appeal remains denied, issue the Veteran an SSOC and allow the appropriate time for response. Then, return the case to the Board for further appellate review. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Gates 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.