Citation Nr: 21024065 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-03 041 DATE: April 22, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for osteoarthritis of the lumbar spine prior to August 1, 2017, is remanded. Entitlement to a disability rating in excess of 20 percent for osteoarthritis of the lumbar spine on and after August 1, 2017, is remanded. REASONS FOR REMAND The Veteran served in the United States Navy from August 1972 to August 1975; from June 1978 to October 1986; and, from April 1989 to May 1994. On appeal is a February 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the Veteran’s claims file. In November 2017, the Board of Veterans’ Appeals (Board) remanded this issue for further development. In a July 2019 decision, the Board denied a rating in excess of 10 percent for the Veteran’s lumbar spine disability prior to August 1, 2017, and granted a 20 percent rating thereafter. In August 2020, the Court of Appeals for Veterans Claims (Court) issued an order granting the parties’ joint motion for partial remand. Therein, the Court stated that the January 2012 VA examination upon which the Board relied for the period prior to August 1, 2017 failed to comply with Correia v. McDonald, 28 Vet. App. 158 (2016), and that the June 2018 and July 2018 VA examinations upon which the Board relied for the period after August 1, 2017 failed to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), and was inconsistent, respectively. The matters now return to the Board for further adjudication. 1. Entitlement to a disability rating in excess of 10 percent for osteoarthritis of the lumbar spine prior to August 1, 2017, is remanded. 2. Entitlement to a disability rating in excess of 20 percent for osteoarthritis of the lumbar spine on and after August 1, 2017, is remanded. The Board finds that a remand is required to afford the Veteran a new examination. In Correia v. MacDonald, 28 Vet. App. 158, 168-169 (2016), the Court found that 38 C.F.R. § 4.59 requires that VA joint examinations must, where possible, include range of motion results for pain on both active and passive motion and in weight-bearing and non-weight-bearing circumstances. Additionally, estimated ranges of motion should be provided during flare-ups, if feasible, even if the Veteran is not experiencing one during the examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). As stated in the parties’ joint motion, although the January 2012 VA examination contained range of motion findings, the examiner did not specifically indicate whether the Veteran’s lumbar spine was tested for pain in both active and passive motion when weight-bearing and without weight-bearing or why these tests were not performed. As such, this examination fails Correia. See Parties’ Joint Motion for Partial Remand (filed August 26, 2020). Furthermore, as stated in the parties’ joint motion, the June 2018 VA examination failed to comply with Sharp, as the Veteran reported that he had flare-ups, but the examiner failed to address the severity of these flare-ups, to include failing to provide an estimate as to the degree of any additional range of motion loss due to pain on use or during flare-ups, or provide an explanation as to why this information could not be included. See Parties’ Joint Motion for Partial Remand (filed August 26, 2020). Additionally, the July 2018 VA examination is inconsistent. The examiner noted that during flare-ups the Veteran experienced pain, weakness, fatigability, or incoordination but then estimated that his functional ability was the same as found on his initial range of motion testing. Therefore, there is an inconsistency with the July 2018 VA examination’s finding that there was a loss of functional ability with flare-ups and the estimate as to the degree of this functional loss in terms of range of motion. See Parties’ Joint Motion for Partial Remand (filed August 26, 2020). For these reasons, the Board finds that remand is warranted to obtain a new VA examination. The matters are REMANDED for the following action: 1. After obtaining any necessary releases, obtain any outstanding VA or private treatment records pertinent to the claims on appeal. 2. Thereafter, schedule the Veteran for an examination with an appropriate examiner to address the prior and current severity of his service-connected lumbar spine disability. Range of motion measurements must be included for the thoracolumbar spine in both active and passive motion and in weight-bearing and non-weight-bearing circumstances. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. The examiner must also assess any additional symptomatology and functional impairment caused by repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the Veteran is not having a flare-up at the time of the examination, the examiner must still provide an estimated assessment, using lay observations elicited from the Veteran. The examiner should provide Sharp and Correia estimates for the periods both prior to August 1, 2017, and after August 1, 2017. Specifically, the examiner is asked to provide a retrospective opinion, as best as can be ascertained from the Veteran’s self-reports as well as from clinical records and other evidence, estimating both active and passive motion on both weight-bearing and non-weight-bearing, and must estimate any additional degrees of limited motion caused by functional loss during a flare-up and/or after repeated use over time for both the period prior to August 1, 2017, and the period on and after that date. If it is not possible to provide specific measurements based the evidence of record, the examiner must provide an estimate, if at all possible, of the range of motion on both active and passive motion on both weight-bearing and non-weight-bearing, and of any additional impairment due to flare-ups and with repeated use over time based on the other evidence of record and the Veteran’s statements. The examiner must discuss the effect of the Veteran’s lumbar spine disability on any occupational functioning and activities of daily living throughout the period on appeal. The examiner should note all symptoms the Veteran associates with his service-connected lumbar spine disability. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups of the Veteran’s lumbar spine disability, and the degree of functional loss during flare-ups. If the examiner finds that it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment of the impacted joint without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (he or she does not have the requisite knowledge or training). The examiner may not rely solely upon his or her inability to personally observe the Veteran during a period of flare-up or following repeated use over time. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Finelli, 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.