Citation Nr: 21014655
Decision Date: 03/15/21	Archive Date: 03/15/21

DOCKET NO. 14-15 739
DATE: March 15, 2021

REMANDED

The claim of entitlement to an initial rating higher than 20 percent for degenerative disc and joint disease of the lumbosacral spine is remanded.

REASONS FOR REMAND

The Veteran served on active duty from October 1978 to January 1987.

This appeal is from an August 2011 rating decision.

In October 2019, the Board granted a 20 percent initial rating for the low back, but no higher.  The Veteran appealed that denial, and the U.S. Court of Appeals for Veterans Claims granted a Joint Motion for Partial Remand (JMPR) in October 2020.

The claim of entitlement to an initial rating higher than 20 percent for degenerative disc and joint disease of the lumbosacral spine is remanded.

The JMPR noted that the Board relied on a February 2019 VA examination that was inadequate under Sharp v. Shulkin, 29 Vet. App. 26 (2017).  In that case, the Court held that to comply with 38 C.F.R. § 4.40, the VA examiner must provide an opinion on whether pain significantly limits functional ability during flare-ups or on repetitive use over a period of time, in terms of the degree of additional range-of-motion (ROM) loss.  Further, the VA examiner must elicit information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment from the Veteran.  Finally, if the VA examiner cannot estimate in degrees of ROM, then an explanation must be provided on why an estimate cannot be made.  Id.  Here, the VA examiner indicated an opinion could not be provided without resorting to speculation because the examination was not conducted during a flare or after repetitive use over time.  He did not explain why the Veteran’s statements were not helpful in that regard.

Accordingly, an updated VA examination of the back must be obtained.

The matters are REMANDED for the following action:

1. Associate updated VA treatment records with the claims file.

2. After completion of directive 1, schedule the Veteran for an appropriate examination for a report on the current severity of the Veteran’s lumbosacral spine degenerative disc and joint disease.  The examiner is asked to review the record prior to the examination. The examiner is asked to conduct a complete examination, including all necessary diagnostic tests. 

Range of motion testing shall be conducted, in both active and passive motion. The examiner is asked to elicit from the Veteran a detailed description of his symptoms generally, and during flares and after repetitive use. The examiner is asked to ask the Veteran for details on his function and functional ability during flares and after repetitive use. The examiner is asked to provide an opinion on whether the Veteran has additional loss of function during flares or after repetitive use, and if so, to express that additional loss in terms of range of motion lost, if possible. If not possible, the examiner is asked to explain why the Veteran’s statements regarding his functional loss were not helpful in that regard.

All opinions must be supported with explanation.

 

 

Nathaniel J. Doan

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Gibson

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.