Citation Nr: 21015477
Decision Date: 03/17/21	Archive Date: 03/17/21

DOCKET NO. 11-26 665A
DATE: March 17, 2021

ORDER

Entitlement to an initial disability rating in excess of 20 percent prior to August 13, 2008, in excess of 40 percent from August 13, 2008, to November 30, 2009, and in excess of 20 percent thereafter for chronic lumbar strain with degenerative changes and pseudoarthrosis (lumbar spine disability) is remanded.

REASONS FOR REMAND

The Veteran served on active duty from January 1997 to January 2001.  

This matter was previously before the Board in February 2020, at which time the issue was remanded for additional development. The Board finds there has not been substantial compliance with the remand directives for the claim decided herein. Stegall v. West, 11Vet. App.268 (1998). Another remand is required.

While the record contains a VA examination dated in December 2020 regarding the Veteran’s service-connected lumbar spine disability, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158 (2016). The examination report fails to provide range-of-motion findings in either passive or non-weight bearing positions. Rather, the examination report simply states that there was objective evidence of pain when testing under these conditions. The examiner failed to explain why he could not provide these range-of-motion findings. Remand is needed for a new VA examination with more thorough findings in compliance with Correia.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the current severity of his service-connected lumbar spine disability. The examiner should 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 complete the corresponding VA disability benefits questionnaire (DBQ). The examiner must test and provide range-of-motion findings for the Veteran’s lumbar spine on active motion, passive motion, and pain with weight-bearing and with nonweight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner must also specifically comment on whether the lumbar spine disability involves any functional limitation. To the extent possible, the examiner should identify any symptoms and functional impairments due to the disability alone and discuss the effect of the Veteran’s service-connected lumbar spine disability on any occupational functioning and activities of daily living. An opinion regarding flare-ups should be based on information available in the claims file as to frequency, duration, characteristics, severity or functional loss, to include lay statements. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 

2. Please review the examination report to ensure that it actually complies with the remand directives stated above. Specifically, if range-of-motion measurements are not provided by the examiner in compliance with Correia, the examination must be returned to obtain complete medical findings.  

 

Jack S. Komperda

Acting Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	K. Veltri, Associate Counsel