Citation Nr: 21022339 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 19-06 160A DATE: April 15, 2021 REMANDED Entitlement to a rating in excess of 20 percent for intervertebral disc syndrome and degenerative arthritis of the lumbar spine (hereinafter, “lumbar spine disability”) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Air Force from June 1953 to June 1972. His decorations include the Vietnam Service Medal and the Air Medal with two Oak Leaf Clusters. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The RO, in pertinent part, increased the rating for the Veteran’s service-connected lumbar spine disability to 20 percent, effective April 14, 2017. The Board denied the Veteran’s appeal in January 2020. The Veteran then appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court granted a Joint Motion for Remand (JMR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board’s decision and remanding the matter for readjudication. Entitlement to a rating in excess of 20 percent for service-connected lumbar spine disability is remanded. In the JMR filed with the Court, the parties to the appeal agreed that the Board relied on inadequate VA examination reports in denying a rating in excess of 20 percent for the Veteran’s lumbar spine disability. More specifically, the parties agreed that VA examination reports in May 2017 and December 2018 did not adequately address the impact of flare-ups consistent with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board is bound by the terms of the JMR. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006) (holding that the duty to ensure compliance with the Court’s order extends to the terms of the agreement struck by the parties that forms the basis of the JMR); cf. McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009) (the Board has a duty on remand to ensure compliance with the favorable terms stated in the JMR or to explain why the terms will not be fulfilled.). Once VA has provided a VA examination, it is required to provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303 (2007). Pursuant to the JMR, a remand is required to afford the Veteran a new examination that complies with the requirements of Sharp, supra. The parties to the JMR also stated that upon remand the Veteran would assert that the Board adjudicated his claim without discounting the ameliorating effects of medication, as required by cases such as Jones v. Shinseki, 26 Vet. App. 56 (2012). That matter should also be addressed on remand, to include in the context of the new examination. This matter is REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issue on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact, and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for an examination of his low back. 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, and in weight bearing and non-weight bearing, if possible. If such testing is not feasible, the examiner should clearly explain why that is so. In order to comply with Sharp, the examiner must attempt to elicit information from the Veteran 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 competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. In so doing, the examiner should specifically indicate whether, when discounting the ameliorative effects of medication, it is at least as likely as not (i.e., it is 50 percent or more probable) that with repeated use over time, and/or during flare-ups, the Veteran’s forward flexion is limited to 30 degrees or less; and, if so, how frequently that level of impairment occurs. To the extent feasible, the examiner should also offer a retrospective opinion as to the presence and frequency of such loss throughout the period on appeal, which originated from an April 14, 2017 claim. The examiner’s opinion(s) should reflect consideration of the findings of the VA examinations conducted in May 2017 and December 2018. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions 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. A complete medical rationale for all opinions expressed must be provided. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, 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.