Citation Nr: 21028388 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-43 577 DATE: May 11, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent before August 7, 2019 and in excess of 40 percent thereafter for degenerative disc disease, lumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1982 to April 1986 and from January 1991 to June 2008. In August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This appeal was previously before the Board in September 2020 when it was remanded for further development. Entitlement to a disability rating in excess of 10 percent before August 7, 2019 and in excess of 40 percent thereafter for degenerative disc disease, lumbar spine. Pursuant to the Board remand, the Veteran underwent a VA examination in March 2021; however, an additional medical opinion is needed. The March 2021 examination included the Veteran's report of flare-ups 3 to 4 times per month, lasting 3 days. The Veteran described the flare-ups as "severe." He said he had difficulty getting out of bed and he required assistance from his wife to stand up. The examiner estimated range of motion during flare-ups as limited to 20 degrees. The examiner's rationale noted pain during a flare as 8/10 and the Veteran required his wife's assistance "with ambulation." The 40 percent rating in effect from August 2019 is the maximum evaluation for a back disability not manifesting in ankylosis. The Board must still consider whether the functional loss during flare-ups is consistent with that contemplated by ankylosis; that is, the functional equivalent of ankylosis. 38 C.F.R. §§ 4.40 and 4.45; Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660, 2021 WL 1432578 (Apr. 16, 2021). The March 2021 examiner did not address whether the Veteran's report that he needs help standing up and ambulating during flare-ups is the functional equivalent of ankylosis. A June 2016 VA examination included the Veteran's report of flare-ups with pain present as 9/10. However, that examiner did not attempt to elicit relevant information regarding the description of the Veteran's flare-ups and any additional functional loss suffered during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). To the extent possible, the opnion on remand should attempt to estimate any additional loss of motion on flare-ups for the period before August 2019. The matters are REMANDED for the following action: 1. Obtain an addendum medical opinion from the clinician who examined the Veteran in March 2021 (or another appropriate clinician if the examiner is unavailable.) The opinion provider should be provided with all pertinent documents including a copy of this remand. If the opinion provider determines the requested opinion cannot be made without examination of the Veteran, an examination should be scheduled. After review of pertinent documents and examination of the Veteran, if necessary, the opinion provider is asked to answer the following: (a) Is the increased functional loss experienced by the Veteran during flare-ups functionally equivalent to ankylosis? In answering this question, the examiner must specifically consider the following: (i) the Veteran's report on March 2021 VA examination as to the frequency, duration and severity of the flare-ups; (ii) his report that he needed assistance getting out of bed, standing up and ambulating. (b) the examiner should attempt to estimate any functional loss during flare-ups for the period prior to August 2019. In answering this question, the examiner should consider the following: (i) the medical records; (ii) the report of a June 2016 VA examination and the Veteran's description of the pain during flare-ups as 9/10. The provider must include a detailed rationale for all opinions provided. If the opinion provider determines that a requested opinion or measurement cannot be made without resort to speculation, they should say why and what, if any, information would be needed to do so. M.E. Larkin Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Collins, 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.