Citation Nr: 21013574 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-00 619 DATE: March 9, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for a focal disc herniation is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from June 2002 to October 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in December 2013 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. It was previously before the Board in September 2018 and September 2020 and remanded for further development. Unfortunately, another remand is necessary. In its September 2020 remand, the Board found that a January 2020 VA examination was inadequate, as the examiner found no guarding despite the Veteran’s statements. The January 2020 examiner did not provide any explanation as to why she found that the Veteran did not experience muscle spasms or guarding when the examiner, in the same report, documented spasms and the Veteran reported spasms multiple times throughout the examination. Therefore, because the matter of muscle spasms and guarding is specifically considered in the relevant rating criteria, and were not properly evaluated in the January 2020 VA examination, the Board found that the examination was inadequate and remanded the claims to allow for a new examination. Unfortunately, a mistake was made regarding the type of examination needed, and the resulting October 2020 VA examination was of the Veteran’s cervical spine, rather than his lumbar spine. Therefore, the Board finds that there has not been compliance with its previous remand instructions. Because the Board errs as a matter of law when it fails to ensure remand compliance, and because VA is obligated to provide the Veteran with an adequate examination, it finds that the claim must be remanded for completion of the development requested in September 2020. See Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The matters are REMANDED for the following action: Schedule a VA examination to identify the nature, extent and severity of all manifestations of his focal disc herniation. The examiner is asked to specifically address whether the Veteran’s spine disability is manifested by muscle spasms, guarding, weakened movement, excess fatigability, incoordination, and/or pain after repetitive use over time and/or during flare-ups. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jeremy J. Olsen, 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.