Citation Nr: 21013985 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 11-28 303 DATE: March 11, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected lumbar spine degenerative disc disease (DDD) prior to July 25, 2018, and in excess of 20 percent from July 25, 2018, forward is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. Introduction The Veteran served honorably on active duty in the United States Army during the Vietnam Era, from September 1968 to April 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2010 and January 2019 Rating Decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). When these matters came before the Board previously in May 2019, the Veteran’s claims were denied. However, in July 2020, the United States Court of Appeals for Veterans Claims (Court) entered its Order remanding the issues for action consistent with the terms of an agreed upon Joint Motion for Partial Remand (JMPR). 38 U.S.C. § 7252(a). REASONS FOR REMAND Entitlement to a disability rating in excess of 10 percent for service-connected lumbar spine DDD prior to July 25, 2018, and in excess of 20 percent from July 25, 2018, forward is remanded. According to the JMR, for the period prior to July 25, 2018, “the Board provided an inadequate rationale for implicitly finding the January 2010 VA examination was adequate.” Essentially, the JMR states that the Board erred in its reliance on the VA examination because, although the Veteran “reported ‘flare ups associated with activity and a pain level of 9/10 six to eight times a month lasting short durations,’ … the examiner noted that ‘additional limitation due to flare ups cannot be determined without resorting to mere speculation’ but provided no further explanation.” The JMR also states that, “[t]he parties agree that it is unclear if this examination is adequate, and remand is warranted for the Board to discuss if it is adequate.” The Board finds the January 2010 VA examination report is inadequate for rating purposes considering the subsequent ruling in Sharp v. Shulkin. 29 Vet. App. 26, 32 (2017). See Barr v. Nicholson, 21 Vet. App. 303 (2007). Pursuant to Sharp, when the Veteran reports flare-ups, “an examiner must express an opinion on whether pain could significantly limit functional ability and the examiner’s determination in that regard should, if feasible, be portrayed in terms of the degree of additional range-of-motion [ROM] loss due to pain on use or during flare-ups.” Id. Without explaining whether the inability to offer such opinion was based upon the absence of procurable information, the examiner’s shortcomings, or general aversion to offering an opinion on issues not directly observed, the VA examiner summarily concluded that, “additional limitation due to flare ups cannot be determined without resorting to mere speculation.” Likewise, for the period beginning July 25, 2018, the JMR states that, “the Board provided an inadequate rationale for implicitly finding the July 2018 VA examination was adequate.” Essentially, the JMR states that the Board erred in its reliance on the VA examination because, although the examiner “found that [the Veteran] has flare ups of his back disability and that ‘pain, weakness, fatigability or incoordination [does] significantly limit functional ability with flare ups,’” the examiner noted that, “‘it is not possible to accurately estimate the exact ROM loss as the Veteran’s limitations are variable depending on the severity of a flare-up.’” Again, the JMR states that, “it is unclear if the examination is adequate, and remand is warranted for the Board to discuss if it is adequate.” The Board finds the July 2018 VA examination report is also inadequate for rating purposes pursuant to Sharp. Id.; see Barr, 21 Vet. App. 303. According to the VA examiner, although “[t]he Veteran would experience increased pain with movement, fatigue, weakness and lack of endurance with flare-ups, leading to a decrease in functional capacity,” without explanation the examiner summarily concluded that, “[i]t is not possible to accurately estimate the exact ROM loss as the Veteran’s limitations are variable depending on the severity of a flare-up.” Finally, the JMR provides that, “it is unclear if the July 2018 VA examination is adequate because the Board does not address if the examination is adequate pursuant to Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011).” Specifically, “the VA examiner did not indicate at what points during the [ROM] testing that [the Veteran] experienced any limitation of motion specifically attributed to this pain.” As a result, “remand is warranted for the Board to explain if the examination is adequate pursuant to … Mitchell.” Id. The Board finds the July 2018 VA examination report is also inadequate for rating purposes pursuant to the holding in Mitchell. Id.; see Barr, 21 Vet. App. 303. While the VA examiner indicated that pain noted on examination causes functional loss, including on all planes of ROM, without explanation the examiner did not indicate at what points during the ROM testing the Veteran experienced limitation of motion attributable to pain. Based upon the foregoing, remand is required to afford the Veteran a new VA examination and obtain an examination report adequate for rating purposes. Entitlement to a TDIU is remanded. The issue of entitlement to a TDIU is inextricably intertwined with the increased rating claim remanded herein. As such, consideration of the Veteran’s TDIU claim must be deferred pending the outcome of the increased rating claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for an in-person VA examination with a physician possessing the necessary expertise to fully assess and provide an opinion regarding the nature and severity of the Veteran’s service-connected lumbar spine DDD for the entire period on appeal. The examiner must obtain a full history from the Veteran. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, such as observable symptomology. All pertinent symptomology must be reported in detail. Any indicated studies should be conducted. Based upon a review of all pertinent evidence in the Veteran’s claims file, including medical evidence, lay statements, and the examination results, the examiner must provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments and discuss the effect of the Veteran’s lumbar spine condition on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment, in terms of additional ROM loss, due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide such an estimate, the examiner must clearly explain why that is so (e.g., no one could respond given medical science and the known facts, additional facts are required, does not possess the necessary knowledge or training). The examiner must also attempt to provide a specific measurement regarding at what points during ROM testing the Veteran experienced any limitations of motion specifically attributed to pain. If it is not possible to provide such measurement(s), the examiner must clearly explain why that is so (e.g., no one could respond given medical science and the known facts, additional facts are required, does not possess the necessary knowledge or training). In offering the above opinion, the examiner must consider and discuss as necessary all pertinent lay and medical evidence of record including, but not limited to, the January 2010 and July 2018 VA examiners’ reports noting additional functional loss during flare-ups, as well as, the July 2018 VA examiner’s finding of functional loss caused by pain exhibited on all planes of ROM. A complete and thorough rationale for any opinion expressed, with reference to pertinent evidence of record, must be provided. 2. Thereafter, the claims must be readjudicated, including the claim for a TDIU. (Continued on the next page)   (Continued on next page) T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Worsham, Attorney Advisor 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.