Citation Nr: 21025074 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 18-13 056 DATE: April 27, 2021 REMANDED Entitlement to a rating in excess of 20 percent for a back disability from March 21, 2019 and thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Coast Guard from August 1978 to August 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, in pertinent part, the Board denied the Veteran’s increased rating claim. The Veteran thereafter appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in September 2020, the Court granted the parties’ Joint Motion for Partial Remand (JMR) to vacate the Board’s decision and remand the case for readjudication in accordance with the JMR. In the September 2020 JMR, the parties agreed that the Board relied on an inadequate VA examination dated in March 2019. Specifically, the parties determined that the March 2019 VA examination was contrary to Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011) and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995), as the examiner failed to note where on range of motion testing that the Veteran’s pain began, even though pain was observed on examination and that pain was determined to cause functional loss. Additionally, the March 2019 VA examination was deemed to be internally inconsistent, as it did not adequately inform the Board of the functional impact of Veteran’s disability during a flare-up. Accordingly, this case will be remanded to accord the Veteran a new examination regarding her service-connected back disability and to obtain outstanding records. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain all outstanding private treatment records. If any records are unavailable, notify the Veteran pursuant to 38 C.F.R. § 3.159(e). 3. Then schedule the Veteran for a VA examination to determine the current nature and severity of her back disability. The claims file, to include a copy of this remand must be made available to and be reviewed by the examiner. All findings must be reported in detail. The examiner is asked to address the following: (a). Full range of motion testing must be performed where possible. The joint involved should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (b). In conducting range of motion studies, please note the degree within each specified range of motion that the Veteran’s pain begins. (c). Considering the Veteran’s reported history, please also provide an opinion describing functional impairment of the Veteran’s back due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. (d.) Opine as to whether the Veteran’s functional loss is the functional equivalent of ankylosis during a flare-up. See March 2019 VA examination report (the Veteran reported that sharp pain makes her back “freeze” for several moments.) A complete rationale shall be given for all opinions and conclusions expressed. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Forde, 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.