Citation Nr: 21022761 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 13-03 745A DATE: April 19, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for lumbar strain is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1991 to September 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In July 2017, the Veteran provided testimony in a video conference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. In a December 2019 decision, the Board denied the Veteran’s claim for a disability rating in excess of 10 percent for his lumbar strain. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In September 2020, the Veteran and the Secretary of VA (parties) entered a Joint Motion for Partial Remand (JMPR), which was granted by the Court. The parties agreed that vacatur and remand are warranted because the Board erred in finding that VA’s duty to assist was satisfied. Specifically, the parties stated that the Board relied on VA examinations from September 2011, February 2017, and December 2017 related to the Veteran’s lumbar strain and those VA examinations failed to adequately discuss whether the Veteran’s pain limits his functional ability or describe the limitations in terms of the degree of additional range of motion loss due to pain on use or during flare-ups. Furthermore, parties determined the VA examinations did not comply with the Court’s holding in Sharp v. Shulkin, 29 Vet. App. 26, 33-35 (2017), relating to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups. Therefore, the Board finds additional development is warranted pursuant to the JMPR to address the duty to assist error of failing to provide an adequate examination. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from April 2020 to the present. 2. After obtaining the Veteran’s updated VA treatment records, schedule the Veteran for an examination of the current severity of his lumbar strain. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The VA examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the VA examiner is unable to report the degree of additional range of motion loss during a flare-up, the VA examiner must explain why it is not feasible to render such an opinion. In other words, the VA examiner should opine as to any resultant loss in range of motion that would occur during flare-ups or explain why it is not feasible to render such an opinion. A complete rationale for any opinion expressed must be provided, to include if the examiner determines an opinion cannot be provided without resort to speculation. An examiner’s report that he or she cannot provide an opinion without resort to speculation is inadequate unless the examiner provides a rationale for that statement. As such, if the examiner is unable to offer an opinion, it is essential that he or she provide a rationale for the conclusion that an opinion could not be provided without resort to speculation. Additionally, the opinions should address the particulars of this Veteran’s medical history and the relevant medical science as applicable to this claim. 3. After completion of the above and any additional development deemed necessary, readjudicate the issue of entitlement to a disability rating in excess of 10 percent for lumbar strain. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Griffin, 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.