Citation Nr: 21014626 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 16-00 900 DATE: March 15, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis of the lumbar spine (previously rated as lumbar strain) prior to October 14, 2019, and in excess of 40 percent, thereafter, is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1978 to May 1981. The Board previously remanded this matter in May 2019 for a VA examination to determine the current severity of the Veteran’s lumbar strain. Unfortunately, as will be discussed in more detail below, another remand is necessary as substantial compliance with the Board’s May 2019 remand directives has not been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis of the lumbar spine (previously rated as lumbar strain) prior to October 14, 2019, and in excess of 40 percent, thereafter, is remanded. The Veteran contends the symptoms of his lumbar spine condition should be assigned a higher disability rating. The Board finds the evidence is insufficient to resolve his claim. While the record contains a contemporaneous VA examination regarding the Veteran’s lumbar spine condition, the October 2019 VA examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner found, based upon the Veteran’s treatment records and the examination, that the Veteran does not experience flare-ups. Upon review, however, the Veteran’s treatment records reflect flare-ups with increased symptoms over the course of days including visits to the emergency department reporting complaints of back pain with exacerbation for a week in August 2015, a flare-up over three days in April 2018, and a flare-up over two weeks in November 2018. See August 2015, April 2018, and November 2018 VA treatment records. The examiner failed to address these documented flare-ups within the October 2019 VA examination report wherein he found the Veteran does not experience flare-ups. Thus, remand is necessary to clarify whether the Veteran experiences flare-ups and the functional impact, if any, thereof. Additionally, the examiner found that while the Veteran has radiculopathy symptoms, including mild numbness in both lower extremities, the Veteran does not have any other signs or symptoms of radiculopathy. The Veteran’s treatment records reference a complaint of falling due to his leg numbness which has not been addressed by the examiner. See January 2019 VA treatment records. Thus, an addendum opinion is necessary to determine the severity of the Veteran’s radiculopathy symptoms in consideration of his report of falling. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination before the October 2019 examiner, if available, or to another appropriate examiner. The entire claims file and this remand should be made available for review. The examiner shall issue an addendum opinion addressing the following: (a.) Whether the Veteran experiences flare-ups of his lumbar spine condition, to include consideration of the VA treatment records reflecting exacerbation in 2015 and multiple flare-ups in 2018. (b.) If the Veteran experiences flare-ups, the examiner should elicit information from the Veteran and the Veteran’s treatment records regarding the severity, frequency, and duration of his lumbar spine flare-ups, including any characteristics and functional loss during flare-ups. (c.) The examiner should opine whether the Veteran’s reports of flare-ups are consistent with the disability shown on the examination. (d.) The examiner should provide a retrospective opinion, based on the Veteran's lay reports as well as medical evidence, estimating any functional loss in terms of additional degrees of limitation of motion of the lumbar spine during flare-ups at the time of the October 2019 VA examination. (e.) The examiner is also directed to address and consider the Veteran’s treatment records indicating that he falls due to his lower extremity leg numbness in conjunction with determining the severity of the Veteran’s radiculopathy. The examiner must provide a complete rationale for any opinion expressed, based on the examiner’s clinical and medical expertise; established medical principles; and references to the evidence of record, as appropriate. If any opinion cannot be expressed without resort to speculation, ensure that the examiner so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. After the above development, and any other development deemed necessary, readjudicate the claims. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Allen, 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.