Citation Nr: 21015762 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 18-41 900 DATE: March 18, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent from April 5, 2007 to July 26, 2009 for a lumbar spine disability is remanded. Entitlement to a disability rating in excess of 20 percent for a lumbar spine disability from July 27, 2009 is remanded. REASONS FOR REMAND The Veteran had active service from June 1983 to January 1995. This matter comes to the Board of Veterans Appeals (Board) from a July 2008 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO) which assigned a 10 percent evaluation effective April 5, 2007. A November 2009 rating decision granted a 20 percent evaluation under Code 5243 effective July 27, 2009. The matters were remanded in July 2019 for additional development, and eventually were denied in a November 2019 Board decision. The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (Court). The Court vacated the denials in an October 2020 Joint Motion for Remand (Joint Motion) and returned the matter to the Board for further action. 1. Entitlement to a disability rating in excess of 10 percent from April 5, 2007 to July 26, 2009 for a lumbar spine disability is remanded. 2. Entitlement to a disability rating in excess of 20 percent for a lumbar spine disability from July 27, 2009 is remanded. The October 2020 Joint Motion indicated that the November 2019 Board decision failed to ensure that the duty to assist was satisfied because the record indicated that relevant VA treatment records were outstanding, and stated that efforts should be made to obtain VA treatment records from after May 2018. As such, the RO should make efforts to obtain VA treatment records and any outstanding private treatment records relevant to the Veteran’s back disability. Further, the Court noted that the most recent VA examination that evaluated the severity of the Veteran’s back disability in May 2018 did not comply with the holding in Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017). That case indicated that the examiner must express an opinion on whether pain during flare-ups or after repetitive use over time would significantly limit functional ability and the examiner should, if feasible, express additional range of motion loss in terms of degrees. The May 2018 examiner indicated that he could not provide such an opinion without resort to mere speculation because it was not possible to make such a determination without observing function under those conditions. However, the record does not reflect the examiner attempted to elicit sufficient information from the record or the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups or during repeated use with respect to the back. Id. On remand, an examination should be conducted that properly comports to the holding in Sharp. See also Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Court further noted that the Board erred in not providing an examination that adequately measured the Veteran’s range of motion on both active and passive motion and in weight-bearing and non-weight bearing. Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). The Court stated that the Board had specifically relied upon VA examinations from September 2007, July 2009, and July 2015 that did not address the Correia requirements. As such, the new examination should not only address the requirements of Correia with regard to the Veteran’s current function, but should also attempt to provide a retrospective opinion as to pain and range of motion in consideration of Correia for the entire appellate period. The matters are REMANDED for the following action: 1. In coordination with the Veteran, obtain and associate with the record any outstanding VA and private medical treatment records relevant to his back disability. Specifically, VA treatment records since May 2018 should be obtained. 2. Schedule the Veteran for a VA examination with an appropriate examiner for his back disability. The electronic claims file should be made accessible to the examiner. Following a review of the claims file, and any testing deemed required, the reviewing examiner is requested to specifically provide the following: (Continued on the next page)   a) The examiner must test the range of motion in active motion, passive motion, weight-bearing, and non-weight bearing, for the lumbar spine. b) The examiner should comment as to the extent of any painful motion, functional loss due to pain, excess fatigability, weakness, and additional disability during flare-ups, expressed as additional range of motion loss in degrees, if possible. The examiner should attempt to elicit the examiner attempted to elicit information from the record or the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups or during repeated use with respect to the back. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Baker, 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.