Citation Nr: 21013567 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-35 021A DATE: March 9, 2021 REMANDED Entitlement to an initial increased rating for a lumbar spine strain, diagnostic code 5237, rated at 10 percent prior to September 25, 2020, and 20 percent from September 25, 2020, is remanded. REASONS FOR REMAND The Veteran served in the United States Navy from May 1984 to June 1990, and February 1991 to April 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously before the Board in April 2018, and then appealed to the U.S. Court of Appeals for Veterans Claims (Court), where it was remanded to the Board in October 2019, and in August 2020, where it was remanded for additional development. It now returns to the Board for adjudication. The Veteran seeks an initial increased rating for his service-connected lumbar spine disability, which is currently evaluated under diagnostic code 5237, lumbar spine strain, evaluated at 10 percent prior to September 25, 2020, and 20 percent from September 25, 2020. Unfortunately, the matter must be remanded again. The Board regrets the additional delay. Entitlement to an initial increased rating for the Veteran’s service-connected lumbar spine disability was remanded from the Court in May 2019 on the grounds that the July 2013 VA examination did not comply with Correia v. McDonald, 28 Vet. App. 158 (2016), which requires that a VA examination include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing. The matter was remanded again by the Board in August 2020 on the grounds that the December 2019 VA examination did not perform range of motion testing using a goniometer as required by regulations. Another VA exam was obtained in September 2020. The Board concludes that the September 2020 VA examination is not adequate, either. The September 2019 examiner stated, when asked whether there was evidence of pain in non-weight bearing, that the question was not applicable. In contrast, in the December 2019 VA examination, the examiner stated that a non-weight bearing was possible, but merely not medically feasible. The contradictory statements by the December 2019 and September 2020 examiners imply that such testing is possible, but the Board must seek clarification to resolve the conflict. The same is true for the question of passive range of motion testing; the September 2020 examiner stated that the exam was not medically feasible, whereas the December 2019 examiner stated that the examination was not applicable. Although an examiner is permitted to decline to conduct an exam, the examiner must “clearly explain” the reasons for doing so. Correia, 28 Vet. App. at 170. The Board finds that the conflict between examiners means that it is not clearly explained why the Veteran did not undergo passive or non-weight bearing range of motion tests, particularly in light of the fact that the Veteran underwent active, weight bearing range of motion tests during the same examination. Because the Veteran has repeatedly contended that he experiences pain on motion and other use that is not necessarily captured by the standard range-of-motion tests, it is essential that all possible range-of-motion measurements be obtained to properly rate the Veteran. If the examinations are able to be done, Correia mandates that they be done. The Board will therefore remand for an examination compliant with Correia. See also Stegall v. West, 11 Vet. App. 268, 271 (1998). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from a qualified examiner. The examiner is directed to read the claims file and this order of remand, and answer the following questions. If the examiner deems it appropriate, schedule the Veteran for a follow up examination. Is it possible to test the Veteran’s passive motion? Is it possible to test the Veteran’s pain without weight-bearing? If so, the examiner must test the Veteran’s passive motion, and pain without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page)   If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. J. B. FREEMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael D. Wagner, Associate 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.