Citation Nr: 21022225 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 16-07 185 DATE: April 15, 2021 REMANDED Entitlement to an initial rating in excess of 10 percent for degenerative disc disease, lumbar spine, is remanded. Entitlement to a rating in excess of 20 percent for degenerative disc disease, lumbar spine, since December 27, 2018, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 2004 to July 2004 and from October 2007 to April 2012. This matter comes before the Board of Veterans Appeals (Board) on appeal from an October 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously remanded by the Board for further development in September 2018. Unfortunately, a second remand is necessary. When a case is remanded, a veteran is entitled to substantial compliance with all remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). If the RO does not substantially comply with the Board’s remand instructions, the Board is legally bound to continue remanding until the mistake is corrected. See id. In September 2018, the Board remanded based on a finding that the September 2014, January 2016, and March 2017 VA examinations, which the RO relied upon when denying the Veteran’s claim, were inadequate. Specifically, the September 2014 and January 2016 examinations reflected no joint testing for pain; the March 2017 examination did note pain in active and passive motion and with weight bearing, but did not note at what point pain began or whether there was additional functional loss. See Correia v. McDonald, 28 Vet. App. 158, 169-170 (2016). Additionally, none of those examination reports described the extent of the Veteran’s functional loss during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The September 2018 Board remand instructed the RO to provide a new VA examination. The Board specified that, at this new examination: Full range of motion testing must be performed. In the examination report, the VA examiner must clearly identify the point in the arc of motion where pain begins. In December 2018, a new VA examination was conducted. This examination report noted pain on forward flexion during the initial range of motion (ROM) test, and said that the pain “does not result in/cause functional loss,” but again did not note where in the arc of motion the Veteran began experiencing pain. Additionally, the December 2018 examination report appears to be contradictory in the way it describes additional functional loss on repeated use and during flare-ups. The report indicated that repeated use over time limited the Veteran’s functional ability, due to pain. However, when asked to describe this functional limitation in terms of ROM, the examiner gave the same ROM numbers as they did when describing the Veteran’s initial ROM measurements: 0 to 45 degrees flexion, otherwise normal ROM. The examiner also said that the Veteran suffered functional loss due to pain during flare-ups, and when asked to describe this loss in terms of range of motion, gave the exact same numbers as the initial ROM measurement. While it is possible that the Veteran in fact does not suffer additional functional loss from flare-ups or on repeated use of his spine, the examination report is worded in an ambiguous way; since a remand is already required, clarification would be useful. The matters are REMANDED for the following action: Obtain a new examination from an appropriate VA clinician. The Veteran’s entire claims file (including a copy of this remand) must be made available to the examiner for review, and the examiner must certify in the addendum opinion report that the claims file has been reviewed. The examiner must perform full range of motion testing. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. The examiner should describe any pain, weakened movement, excess fatigability, instability, and incoordination present. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner should clearly explain why. The examiner must clearly identify where in the arc of motion the Veteran begins to experience pain, regardless of whether the examiner ultimately finds that said pain results in functional loss. The examiner should also state whether the examination is taking place during a 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 his lumbar spine 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 estimate, in degrees, any additional limitation of 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 this is because of 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). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Shermila Sundquist 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.