Citation Nr: 21013554 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-09 792 DATE: March 9, 2021 REMANDED Entitlement to a rating in excess of 10 percent for lumbar strain with degenerative disc disease, status post-fusion with scarring, prior to January 28, 2015, is remanded. REASONS FOR REMAND The Veteran had active service from March 2003 to March 2006. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In a February 2015 rating decision, the rating for a lumbar strain with degenerative disc disease, status post-fusion with scarring, was increased to 20 percent effective January 28, 2015. A rating of 100 percent due to convalescence under 38 C.F.R. § 4.30 was in effect from February 24, 2014 through May 31, 2015. The claim on appeal was denied by the Board in a September 2019 decision. See board decision, September 19, 2019. In response to the September 2019 decision denying the claim, the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties, which directed a remand of the portion of the September 2019 decision addressing the claim for entitlement to a rating in excess of 10 percent for lumbar strain with degenerative disc disease, status post-fusion with scarring, prior to January 28, 2015. See JMPR, August 5, 2020. The JMPR further noted that, while the September 2019 Board decision also denied the claim for entitlement to a rating in excess of 20 percent for lumbar strain with degenerative disc disease, status post-fusion with scarring, after January 28, 2015, the Veteran expressly waived his appeal to that part of the Board decision. The Court dismissed the issue. See JMPR, August 5, 2020. 1. Lumbar Strain The Veteran asserts that a higher rating is warranted for his service-connected lumbar strain. The Veteran’s lumbar strain is rated as 10 percent disabling prior to January 28, 2015. The JMPR noted that the Veteran underwent an examination for his back in November 2012, and it was that examination on which the Board relied to deny the Veteran an increased rating prior to January 28, 2015. The JMPR stated that, to be adequate, an examination report must state whether there is additional functional loss during flare-ups or upon repetitive use as a result of pain, and the examiner must specify at that point during the range of motion pain results in functional loss, both regularly and upon repetitive use and flare-ups. The JMPR related that the November 2012 examination report did not meet that criteria, and was therefore inadequate, stating that a new examination must be provided to estimate the severity of the Veteran’s back disability prior to January 28, 2015. See JMPR, August 5, 2020. When adjudicating this claim, the Agency of Original Jurisdiction (AOJ) should be mindful of the Court’s holdings in DeLuca v. Brown, 8 Vet. App. 202 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32 (2011) regarding painful motion. Namely, when evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). In addition, the Board notes that, “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59. See Correia v. McDonald, 28 Vet. App. 158 (2016). The referenced portion of 38 C.F.R. § 4.59 (2016) states that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint.” As also relevant, a 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). Pursuant to Sharp, 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. A VA examiner should, on remand, address any flare-ups claimed by the Veteran, based on Sharp. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine and estimate the severity of his lumbar strain for the appeal period prior to January 28, 2015. The examiner must review the claims file and note that review in the examination report. The examiner must provide the rationale for all opinions expressed. If the examiner is unable to provide the required opinion, the examiner should explain why that is. The examiner should provide opinions on the following: (A) Identify all lumbar spine orthopedic pathology found to be present prior to January 28, 2015. 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 lumbar spine, i.e., the extent of the Veteran’s pain-free motion. (B) Identify any objective evidence of pain, and the degree at which pain begins. Any weakened movement, excess fatigability, and incoordination on use should also be described. Assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. Please specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. (C) Pursuant to Correia v. McDonald, the examiner must estimate the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing prior to January 28, 2015. If a joint cannot be tested on “weight-bearing,” then the examiner must specifically indicate why that testing cannot be done. (D) Pursuant to Sharp v. Shulkin, the examiner is instructed to inquire whether there were periods of flare-ups prior to January 28, 2015. If the answer is “yes,” the examiner should state their severity, frequency, and duration. The examiner must also name the precipitating and alleviating factors. The examiner must also estimate, “per [the] veteran,” to what extent, if any, they affected functional impairment. (E) Please obtain a detailed clinical history from the Veteran and provide a thorough account and analysis of the manner in which the Veteran’s lumbar spine affected him in his everyday life prior to January 28, 2015 particularly the impact that it had on the Veteran’s ability to secure and follow a substantially gainful occupation. A rationale for all opinions 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.