Citation Nr: 21025887 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 14-25 223A DATE: April 29, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent from May 11, 2012, and 40 percent from April 12, 2018, for chronic lumbar strain is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1980 to April 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted the Veteran service connection for his chronic lumbar strain and assigned a 10 percent rating from May 11, 2012. A June 2020 rating decision denied a rating in excess of 40 percent from April 12, 2018. A Board hearing was held in October 2018. A transcript is of record. In May 2019 and November 2020, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. The claim is back before the Board for further appellate proceedings. Regrettably, the Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board’s prior remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). During the pendency of the appeal, the AOJ assigned a separate evaluation for neurological manifestations in the right lower extremity in September 2017, and in the left lower extremity in November 2018. The Board observes that the General Rating Formula for Diseases and Injuries of the Spine directs that associated objective neurologic abnormalities are to be evaluated as part of the spine disability, and rated accordingly. Thus, the question of whether there are associated neurologic abnormalities, and their appropriate evaluation, must be considered for the entire pendency of the Veteran’s appeal. In November 2020, the Board remanded the claim for an examination where the VA examiner was to elicit information on the characteristics, severity, frequency, and duration of the Veteran’s flare-ups, and then estimate the extent of any additional functional loss during such periods. See November 2020 Board remand. This instruction is consistent with the holding in Sharp v. Shulkin, 29 Vet. App. 26, (2017). In Sharp, the Court held that a VA examination is inadequate when the VA examiner does not elicit relevant information as to the Veteran’s flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not “estimate the [Veteran’s] functional loss due to flares based on all the evidence of record (including the [Veteran’s] lay information) or explain why [he or she] could not do so.” 29 Vet. App. 26, 35 (2017). As a result, the Veteran was afforded a VA examination in January 2021. The examiner was asked to specifically address the Veteran’s flare-ups and any resulting additional functional loss. However, the January 2021 examiner checked the box that indicated the Veteran did not report flare-ups. See January 2021 VA examination report. This is inaccurate. The Veteran contends that he suffers from flare-ups of back pain. See March 2021 Veteran statement. The examiner went on the opine that despite the Veteran’s credible and consistent statements regarding flare-ups, that the Veteran did not have what the examiner considered to be flare-ups. The examiner stated that the Veteran’s significant increases in pain “are associated and have been associated with use or repetitive use. They do not happen out of the blue on a consistent basis without warning or identifiable provocation.” See January 2021 VA medical opinion. Ultimately, the examiner concluded that the Veteran’s “exacerbations of pain, limited range of motion and reduction and functional capacity are secondary to the chronic pain from his lumbar spine strain, muscle spasming and lower extremity radiculopathy which is fairly constant that is exacerbated by use on a frequent basis.” Id. However, the Board finds that the January 2021 examiner assigned a definition of flare-up that is overly restrictive, and ultimately not beneficial to the Veteran. The Board finds that the Veteran has given various consistent and credible statements regarding flare-ups as outlined in the prior Board decisions. See May 2019 Board remand; see also November 2020 Board remand. As recently as March 2021, the Veteran indicated that his back pain could become so bad that some mornings he can barely stand to make coffee. See March 2021 Veteran statement. This statement is indicative of a flare-up, as the pain described appears to be worse than other mornings, but does not appear to have been precipitated by use or repetitive use as categorized by the January 2021 VA examiner—notably, as this particular description is increased pain and functional loss in the morning before the Veteran’s day began. The Veteran described other specific instances of flare-ups in his March 2021 correspondence, including flares that occur during household chores or even something as simple as standing for too long. Id. The Veteran is competent to report additional impairment during flare-ups, and the Board considers his reports credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n.4 (Fed. Cir. 2007). Ultimately, like the December 2019 VA examination, the January 2021 VA examination does not comply with the holding in Sharp; accordingly, additional VA examination of the Veteran’s back disability must be scheduled to comply with Sharp and Stegall. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his chronic lumbar strain and bilateral lower extremity radiculopathy that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative, if any, should be notified, and the record clearly documented. 2. After the above has been completed, schedule the Veteran for an examination by an examiner, other than the examiner that conducted the January 2021 VA examination, to determine the current severity of his service-connected chronic lumbar strain and bilateral lower extremity radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must ask the Veteran whether he suffers, or has ever suffered, from flare-ups of his service-connected chronic lumbar strain and bilateral lower extremity radiculopathy. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should note that the Veteran is competent to report flare-ups, as the symptoms are lay observable. (Continued on the next page)   3. After the above has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Katie Poe, 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.