Citation Nr: 21015260 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-02 004 DATE: March 17, 2021 REMANDED Entitlement to an initial evaluation in excess of 20 percent for service-connected degenerative joint disease of the lumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from March 1971 to March 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed disagreement with several determinations within the AOJ’s rating decision, and the present appeal ensued. The Veteran participated in a hearing at the AOJ in connection with his appeal in August 2015. Further, the Veteran testified at a Board hearing conducted by the undersigned Veterans Law Judge (VLJ) via videoconferencing equipment in February 2019. Transcripts of these hearing have been associated with the file. This appealed issue, among others, was previously before the Board in May 2019, when it was determined that a remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board’s prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran’s appeal has been returned to the Board for further appellate consideration. As an aside, the Board’ May 2019 remand also included six other appealed issues; however, the AOJ granted these issues to the fullest extent in a February 2021 Decision Review Officer (DRO) decision, and neither the Veteran nor his private attorney has expressed disagreement with any determination within this decision. As such, those issues are no longer in appellate jurisdiction and will be discussed no further. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). 1. Entitlement to an initial evaluation in excess of 20 percent for service-connected degenerative joint disease of the lumbar spine is remanded. As per the Board’s May 2019 remand directives, the Veteran was provided a VA spine examination in January 2021 to determine the contemporaneous severity, frequency, and duration of the Veteran’s low back symptoms and resulting functional impairment. Upon initial range of motion testing, the Veteran demonstrated flexion to 50 degrees and 10 degrees each of extension, right and left lateral flexion, and right and left lateral rotation. The examiner noted that the Veteran reported additional limitation of motion on repetitive motion testing and during a flare-up of symptoms; however, the Veteran was not having a flare-up of symptoms and could not complete repetitive motion testing due to increased pain. As such, the January 2021 VA examiner was compelled to speculate as to the extent of the Veteran’s additional limitation of motion of the thoracolumbar spine as a result of any flare-up of symptoms and after repetitive motion testing to satisfy the Court’s holdings in Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017) and DeLuca v. Brown, 8 Vet. App. 202 (1995), respectively. To the above point, the Board observes that the speculated range of motion findings provided by the January 2021 VA examiner mirror those of the initial range of motion findings demonstrated by the Veteran. Such findings are inconsistent with the statements of the Veteran and VA examiner that the Veteran experiences additional limitation of motion of the thoracolumbar spine during flare-ups and on repetitive motion testing. In light of above, the Board concludes that the January 2021 VA spine examination is inadequate for the purpose of readjudicating the Veteran’s appeal. As such, another remand is necessary in order to ensure that the Veteran is provided an adequate VA spine examination. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associated with the file all updated records of VA treatment pertinent to the Veteran. 2. The AOJ must contact the Veteran and request that he complete a release for any post-service treatment records that are outstanding and pertinent to the issue remanded by the Board that are not already part of the record. In these releases, the Veteran should provide a time period in which he was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. All records obtained should be associated with the Veteran's file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 3. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to evaluate his service-connected low back disability. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. The examiner must describe the frequency, severity, and duration of the manifestations of the Veteran’s service-connected low back disability. *To the degree possible, it would be helpful to schedule the Veteran for a VA examination during a flare-up of his service-connected low back disability. *In addition to the information requested by the standard DBQ relating to disabilities of the thoracolumbar spine, the examiner must specifically address the following: - Provide findings for range of motion (expressed in degrees) for thoracolumbar spine during a flare-up of symptoms and on repetitive motion testing, currently and retrospectively. In doing so, please review the January 2021 VA examination report, and based on the information therein, and the contemporaneous VA and private treatment records, provide the requested findings retrospectively. If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. Thereafter, the AOJ must adjudicate the Veteran’s appeal in light of the additional evidence added to the record. If the benefit is not granted to the fullest extent, the Veteran and his private attorney should be furnished with a copy of the readjudication and afforded the applicable opportunity to respond. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.