Citation Nr: 21021848 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-34 307 DATE: April 14, 2021 REMANDED Entitlement to an initial compensable evaluation for osteoporosis of the lumbar spine and in excess of 10 percent from January 21, 2021 is remanded. Entitlement to an initial compensable evaluation for osteoporosis of the cervical spine and in excess of 10 percent from January 21, 2021 is remanded. Entitlement to an initial compensable evaluation for osteoporosis of the right hip and femur is remanded. Entitlement to an initial compensable evaluation for osteoporosis of the left hip and femur is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1961 to April 1966. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in May 2018 when it was remanded for further development. At the time of the May 2018 remand, the issues of service connection for bilateral hearing loss and service connection for ischemic heart disease (IHD) were also remanded. A July 2020 rating decision granted service connection for IHD and service connection for bilateral hearing loss. As the awards of service connection were full grants of the benefits claimed, the appeals of those issues have been resolved and are no longer before the Board. This case was last before the Board in November 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action, the AOJ increased the Veteran’s lumbar spine disability and cervical spine disability to 10 percent disabling, effective January 21, 2021, and confirmed and continued the prior denials and returned the case to the Board. There has been at least substantial compliance with the Board’s remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to an initial compensable evaluation for osteoporosis of the lumbar spine and in excess of 10 percent from January 21, 2021 is remanded. 2. Entitlement to an initial compensable evaluation for osteoporosis of the cervical spine and in excess of 10 percent from January 21, 2021 is remanded. 3. Entitlement to an initial compensable evaluation for osteoporosis of the right hip and femur is remanded. 4. Entitlement to an initial compensable evaluation for osteoporosis of the left hip and femur is remanded. The Board finds that new examinations are warranted for the Veteran’s claims. A medical examination “is adequate where it is based upon consideration of the veteran’s prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board’s ‘evaluation of the claimed disability will be a fully informed one.’” Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994)) In March 2021, the Veteran’s representative contented that the Veteran’s flare-ups of his disabilities had not been notated on his most recent examination. The United States Court of Appeals for Veterans Claims (Court) has noted that for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In that regard, the Court noted that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34. During the Veteran’s January 2021 VA back examination, the examiner found that the Veteran did not suffer from flare-ups of the lumbar spine. However, the examiner also contradictorily noted that the Veteran had “symptoms [which] are intermittent every few months and can last 1 day and up to a week.” No estimated range of motion testing was given for these flare-ups. Similarly, During the Veteran’s January 2021 VA hip examination, the examiner found that the Veteran did not suffer from flare-ups of the right or left hips. However, the examiner also contradictorily noted that the Veteran had “symptoms [which] are intermittent every few months and can last 1 day and up to a week.” Once, again, no estimated range of motion testing was given for these flare-ups. Regarding the Veteran’s cervical spine claim, in January 2021, a VA examiner noted that the Veteran did not suffer from flare-ups of his cervical spine. However, both the Veteran’s July 2014 and October 2016 VA examinations reflect that the Veteran suffered from flare-ups. It does not appear that the examiner reviewed all the Veteran’s information. Furthermore, the examiner also contradictorily noted that the Veteran had “symptoms [which] are intermittent every few months and can last 1 day and up to a week.” As the examination reports appear contradictory and, therefore are inadequate for rating purposes, the Board finds that a remand is warranted to obtain new examinations. The matters are REMANDED for the following action: 1. Assist the Veteran with uploading updated treatment records. 2. Also arrange to have the Veteran scheduled for appropriate VA examinations of his lumbar spine, cervical spine, left hip, and right hip. The examiner should provide a full description of the Veteran’s associated functional impairments as they relate to the relevant rating criteria. The examination must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing, if possible. If such testing is not feasible, the examiner should explain why. The examiner must attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran’s statements and past medical records with respect to the frequency, duration, characteristics, and severity of his limitations. Even if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use during the examination, the examiner should nevertheless offer an opinion with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner’s conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible 3. After undertaking any other appropriate development deemed necessary, readjudicate the Veteran’s claims. If the determination remains adverse to the Veteran, he should be furnished with a supplemental statement of the case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Gandhi, 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.