Citation Nr: 21028905 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 10-20 589 DATE: May 12, 2021 REMANDED Entitlement to an evaluation in excess of 20 percent for his service-connected herniated discs at L4, L5, and S1 (herein after "lumbar spine disability") is remanded. REASONS FOR REMAND The Veteran had active service with the Army from May 1988 to November 1988 and from January 1990 to November 1994. The matter is before the Board of Veterans' Appeals (the Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Board denied entitlement to a rating in excess of 20 percent for a lumbar spine disability. The Veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (the Court). In a December 2020 order, the Court granted the parties' Joint Motion for Remand (JMR), vacating the Board's June 2020 denial of the increased rating claim for a lumbar spine disability, and remanded to the Board for readjudication consistent with the JMR. The Veteran was afforded a VA examination in July 2019. The examiner noted the Veteran experienced pain causing functional loss and limited use of the spine. However, the parties to the JMR determined that the examiner did not specify where in the regular range of motion pain began to cause functional loss. Additionally, the July 2019 examination contained inconsistent findings. The examiner noted pain, weakness, fatigability, or incoordination did not significantly limit the Veteran's functional ability with flare-ups or repeated use over time. This finding was inconsistent with Veteran's reports that back pain prevented him from sitting for prolonged periods, limited all ability to lift and bend, and generally limited use of his spine. The Veteran reported functional loss and that flares caused him increased pain. Where the VA undertakes to provide the Veteran with an examination, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). In order for an examination of the musculoskeletal system to be adequate under 38 C.F.R. § 4.40, the examiner must opine whether pain could significantly limit the Veteran's functional ability during a flare-up or when the joint is used repeatedly over a period of time. If feasible, the examiner should describe any limitations in terms of degrees of additional range of motion loss due to pain on use of during a flare-up. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The matters are REMANDED for the following action: 1. Obtain and associate all outstanding VA and non-VA treatment records with the claims file. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. 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. (a.) The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. (b.) The examiner is to report the range of motion measurements in degrees. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; (2) after repetitive use over time; (3) in weight bearing; (4) non-weight bearing; (5) active motion; (6) passive motion; and (4) as a result of pain, weakness, fatigability, or incoordination. The examiner should also address whether there is a difference in active range of motion, versus passive range of motion. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In any event, the examiner should fully describe the functional limitations. (c.) Regarding the description of functional limitation due to pain, weakness, fatigability, or incoordination during flare-ups, the examiner shall inquire as to periods of flare-up, and note the frequency, severity, and duration of any such flare-ups from the Veteran. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment. 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. (d.) The examiner should also indicate whether the Veteran suffers from intervertebral disc syndrome, and if so, whether this condition has resulted in incapacitating episodes. The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination, and the examination report should reflect review of the record. All necessary tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with the Veteran's lumbar spine disability. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Byers 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.