Citation Nr: 21025347 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 13-23 807 DATE: April 27, 2021 REMANDED Entitlement to a disability rating higher than 10 percent prior to December 29, 2020 and in excess of 20 percent thereafter for lumbosacral spine disorder with degenerative disc disease (DDD) is remanded. REASONS FOR REMAND The Veteran had active military service from November 1981 to February 2002. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2011 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Board remanded for additional development, to include a VA examination. Additionally, in January 2021, VA sent the Veteran a letter requesting he fill out and return enclosed VA Forms 21-4142 and 21-4142a in order to obtain any identified treatment records from February 2007 to October 2020. The Veteran was notified that if he did not respond within 30 days, that a decision might be made. A review of the record shows that the Veteran has not submitted the requested forms. In a January 2021 rating decision, the RO assigned a 20 percent rating for the Veteran’s low back disability, effective December 29, 2020. A Supplemental Statement of the Case (SSOC) was issued in February 2021. Entitlement to a disability rating higher than 10 percent prior to December 29, 2020 and in excess of 20 percent thereafter for lumbosacral spine disorder with DDD is remanded. Unfortunately, the Veteran’s increased rating claim must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. The Veteran contends that his current back disability, diagnosed as degenerative arthritis of the spine and intervertebral disc syndrome are entitled to an increased evaluation in excess of 10 percent prior to December 29, 2020 and in excess of 20 percent thereafter. 38 C.F.R. § 4.71a, Diagnostic Code 5010-5243. The Board finds that a new VA examination and a retrospective medical opinion assessing the functional loss attributable to the Veteran’s service-connected back disability during his reported flare-ups prior to December 29, 2020 is needed, to include 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. Although the Veteran was provided a VA examination in December 2010, and reported flare-ups during the examination, the examiner noted that loss of function due to flare-ups could not be determined without resorting to mere speculation. Moreover, the Veteran was provided another VA examination in December 2020 and the examiner stated “after an examination of the Veteran, obtaining his subjective history and current level of functioning, I would estimate the [V]eteran as likely as not loses an additional motion to a mild to moderate degree beyond what is reflected in the current objective ranges of motion. No clinical tool exists that allows reliable prediction of exacting decreases in range of motion.” The examiner did not provide an adequate rationale for her inability to provide the requested range of motion estimates during flare-ups. Examiners are required to provide estimates, not “exacting decreases” and are qualified to provide such estimates regarding additional loss of range of motion during flare-ups from the translation of lay and medical evidence. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Therefore, remand is warranted for VA to provide a medical examination that provides the additional information required by the holdings of Sharp. Accordingly, this matter is REMANDED for the following action: (Please note: This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c)). The matter is REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records and associate all such records with the electronic claims file. 2. After obtaining any indicated treatment records, obtain a medical examination to fully assess the current severity of the Veteran’s service-connected lumbosacral back disability. The examiner should report the extent of the Veteran’s lumbar spine symptoms in accordance with VA rating criteria. The examiner must also express an opinion whether, prior to December 29, 2020, repeated use or flare-ups resulted in additional limits on functional ability and, to the extent possible, must provide an assessment of the functional impairment on repeated use during flare-ups. The examiner should opine as to any resultant loss in range of motion described in terms of degrees that would occur during flare-ups or explain why it is not feasible to render such an opinion. A complete rationale for all opinions rendered is requested. If the VA examiner is unable to provide an opinion, the VA examiner should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. D. SMART Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Krista Johnson, 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.