Citation Nr: 21021306 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 13-09 228A DATE: April 12, 2021 REMANDED More than a 20 percent initial rating for service-connected lumbar spine degenerative arthritis (low back disability) is remanded. More than a 20 percent initial rating for service-connected cervical spine degenerative arthritis (neck disability) is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1988 to June 2000, April to September 2004, November 2004 to May 2005, November 2005 to May 2006, and June to October 2010. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a March 2011 rating decision appealed in a timely July 2011 notice of disagreement (NOD) and perfected by a timely April 2013 substantive appeal in response to September 2013 statement of the case (SOC). In June 2016, a hearing was held before the undersigned; a transcript is of record. The Board remanded these matters in September 2016, March 2018, and July 2020. 1. More than a 20 percent initial rating for low back disability is remanded. 2. More than a 20 percent initial rating for neck disability is remanded. Unfortunately, the examination reports obtained on remand did not respond to the prior remand’s specific instructions directing that range of motion test results must be recorded in active motion, passive motion, weight-bearing, and non-weight-bearing conditions. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016) (holding that “the final sentence of [38 C.F.R.] § 4.59 creates a requirement that…range of motion testing be conducted whenever possible” on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, in the opposite, undamaged joint). While the examiner did say passive motion could not be tested safely or reasonably, they did not indicate whether range of motion testing was attempted in both weight-bearing and nonweight-bearing. There is also no similar indication that such testing could not safely or reasonably be conducted. The matters are REMANDED for the following action: 1. Schedule the Veteran for an in-person or telehealth examination (whichever is more appropriate) by an appropriate clinician to determine the current severity of his service-connected neck and back disabilities and comply with the prior remand directives. Based on an examination (INCLUDING A COMPLETE SUBJECTIVE REPORT DESCRIBING ONSET, COURSE, AND PROGRESSION OF ALL ASSOCIATED SYMPTOMS AND HOW FUNCTIONING AND MOTION VARY WITH FLARE-UPS, REPEATED USE OVER A PERIOD OF TIME, OR OTHER SUCH CIRCUMSTANCES), review of the record, and any tests or studies deemed necessary, the examiner should describe the frequency and severity of all related symptoms and functional impairment in enough detail to apply the pertinent rating criteria. Range of motion (ROM) test results MUST BE recorded in ACTIVE AND PASSIVE MOTION AND WEIGHT-BEARING and NON-WEIGHT-BEARING. If ROM in ANY CONDITIONS are the same, the examiner MUST SAY SO. If testing UNDER ANY CONDITIONS is not possible, the examiner MUST EXPLAIN WHY. The examiner MUST ALSO comment on or describe, to the extent possible, the functional impact the Veteran’s service-connected neck and back disabilities with flare-ups or repetitive use over time. In doing so, the examiner MUST CONSIDER subjective reports of such functioning (including any range of motion estimates provided). If the examiner is still unable to provide such an opinion, they MUST EXPLAIN WHY in specificity. The inability to directly observe functioning under such conditions IS NOT a valid reason to avoid providing an opinion in this matter per se. All opinions must include a detailed rationale. Providing an opinion without one will delay processing of the claim and may require clarification. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yuan, 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.