Citation Nr: 21024211 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 13-21 891A DATE: April 22, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for herniated disc of the lumbar spine prior to September 11, 2017, and in excess of 20 percent thereafter, is remanded. REASONS FOR REMAND The Veteran served in the Army from July 2003 to March 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Veteran presented testimony before Veterans Law Judge (VLJ) C. M. Bruce, one of the undersigned VLJs. A transcript of the hearing is on record. In November 2019, the Veteran presented testimony before VLJ L. Chu, another one of the undersigned VLJs. A transcript of the hearing is on record. At his November 2019 hearing, the Veteran elected not to appear at a third hearing. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). This matter has been the subject of three prior Board remands. The first, from January 2017, remanded the matter to secure the Veteran a hearing. As noted above, that hearing was held in September 2017. The second, from December 2017, remanded the matter for a VA examination to assess the current severity of the Veteran’s lumbar spine disability. That examination was provided in January 2018. The third, from December 2019, remanded the matter for a VA examination to again assess the severity of the Veteran’s lumbar spine disability. This examination was provided in December 2019. Entitlement to a disability rating in excess of 10 percent for herniated disc of the lumbar spine prior to September 11, 2017 and in excess of 20 percent thereafter is remanded. The Board sincerely regrets further delay, but finds another VA examination is necessary before deciding this claim. Pursuant to the Board’s December 2019 remand, the Veteran was most recently provided a VA back examination in December 2019. Regarding assessment of the Veteran’s back disability following repetitive use over time and during flare ups, the examiner noted pain significantly limits the Veteran’s functional ability. However, when it came to estimate the resulting functional loss in these scenarios in terms of additional degrees of range of motion loss, the examiner recorded the Veteran’s ranges of motion to be the same as his initial ranges of motion. If pain significantly limits functional ability following repetitive use over time and during flare ups, it follows that the Veteran’s range of motion would be reduced in these scenarios. Another examination is necessary to clarify this discrepancy. Lastly, the Veteran testified at his November 2019 that he received private care for his back disability. However, it appears private treatment records are absent from Veteran’s record. Remand will provide an opportunity to obtain these records. The matter is REMANDED for the following actions: 1. Ask the Veteran to identify all private providers who have treated his lumbar spine disability. He should provide a VA Form 21-4142 for each provider. At least two attempts to obtain records from private providers must be made. In the alternative, the Veteran may submit any outstanding records on his own behalf. 2. Ask the December 2019 examiner to clarify in an addendum opinion what the estimated resulting functional loss in terms of degrees of range of motion loss following repetitive use over time and during flare ups of the Veteran’s lumbar spine disability, if possible. However, if the examiner determines such a retrospective estimation is not possible, schedule the Veteran for a VA examination to assess the current severity of his service-connected lumbar spine disability. The examiner must review the claims file. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria. The spine should be tested for pain (and the examiner must provide the range of motion results) on both active and passive motion and in weightbearing and non-weightbearing states. The examiner should also express an opinion as to whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment in terms of the degree of additional range-of-motion loss, if possible, for the lumbar spine. If the Veteran is not being observed after repetitive use or during a flare-up, the examiner must estimate any additional functional loss in terms of the degree of additional rang-of-motion loss, during flare-ups or on repeated use, based on the Veteran’s description of his flares’ severity, frequency, duration, and/or functional loss manifestations. If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups, without resorting to speculation, the examiner must provide an explanation for why this is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based the limitation of knowledge in the medical community at large and not a limitation—whether based on lack of expertise, insufficient information, or unprocured testing—of the individual examiner. 3. Readjudicate the claim. L. CHU Veterans Law Judge Board of Veterans’ Appeals Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.A. Infante, 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.