Citation Nr: 21021911 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 14-19 841A DATE: April 14, 2021 REMANDED Entitlement to a rating in excess of 10 percent prior to September 27, 2019 for degenerative changes of the lumbar spine with annual disc bulges at L4 and L5-S1 is remanded. Entitlement to a rating in excess of 20 percent from September 27, 2019 for degenerative changes of the lumbar spine with annual disc bulges at L4 and L5-S1 is remanded. REASONS FOR REMAND The Veteran had active service from May 1989 to February 1992. In a January 2020 Board decision, the Veteran’s claims for increased ratings for his degenerative changes of the lumbar spine were denied. The Veteran appealed this denial to the Court of Appeals for Veterans Claims (Court), which vacated the Board’s January 2020 denial and remanded the appeal for further consideration in a November 2020 Order granting a Joint Motion for Remand (JMR). In the Court’s decision, it emphasized that functional loss caused by pain must be considered, and that painful motion alone did not constitute limited motion. Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). To this extent, it was agreed that the Board previously erred in relying on inadequate July 2012, January 2016, and September 2019 VA medical examinations to determine the Veteran’s disability entitlement prior to September 27, 2019 and since September 27, 2019. 1. Entitlement to a rating in excess of 10 percent prior to September 27, 2019 for degenerative changes of the lumbar spine with annual disc bulges at L4 and L5-S1 is remanded. 2. Entitlement to a rating in excess of 20 percent from September 27, 2019 for degenerative changes of the lumbar spine with annual disc bulges at L4 and L5-S1 is remanded. The Board finds that the Veteran’s claims must be remanded for additional development in order to comply with the November 2020 JMR. In the November 2020 JMR, the Court explained that the July 2012 VA examiner failed to provide estimated additional functional loss that would occur during flare-ups or after repeated use over time. The Court noted that the Veteran reported that he experienced flare-ups approximately weekly for up to 30 minutes, which impacted his ability to lift objects. Nonetheless, the examiner failed to address whether there was any additional loss due to flare-ups. In addition, the Court found that the examiner in the January 2016 examination also failed to address any additional functional loss resulting from flare-ups or after repeated use over time. Instead, the examiner noted that the Veteran was unable to say whether pain, weakness, fatigability, or incoordination would significantly limit functional ability with repeated use over time or during a flare-up because he determined that there was no available data to make such a determination without speculating. However, the Court noted, an examiner is required, if possible, to estimate functional loss that would occur during flare-ups or after repetitive use from all relevant sources, including the lay statements of veterans. Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017). In the present case, the Veteran reported difficulty bending over during flare-ups. In consideration of the above, a remand is warranted to obtain a new medical opinion addressing functional loss, if any, during flare-ups and after repetitive use for the period prior to September 27, 2019. In addition to the aforementioned examinations, the Court also determined that the September 2019 VA examination was inadequate for appellate review. In that examination, the examiner noted that there was painful motion on all ranges of motion resulting in functional loss. However, the examiner failed to provide any range of motion measurements specifically due to pain. See Mitchell, 25 Vet. App. at 44. As such, on remand, a new VA examination wherein the examiner provides range of motion measurements adjusted for pain should also be obtained. The matters are REMANDED for the following action: 1. Obtain a VA addendum opinion from an appropriate clinician to provide estimated functional loss from flare-ups or after repeated use over time, prior to September 27, 2019. The claims file and a copy of this Remand must be made available to and reviewed by the examiner in conjunction with the opinion. The Board notes that an examiner is required, if possible, to estimate functional loss that would occur during flare-ups or after repetitive use from all relevant sources, including the lay statements of veterans. Sharp, 29 Vet. App. at 35. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of the Veteran’s degenerative changes of the lumbar spine disability. The examiner should conduct range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, Associate 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.