Citation Nr: 21029235 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 18-02 290 DATE: May 13, 2021 REMANDED The issue of a rating greater than 20 percent for a low back condition (claimed as low back strain) is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from November 1957 to September 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from the September 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) denying a rating greater than 10 percent for low back strain previously evaluated with sciatica. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in July 2018. A transcript of the hearing is associated with the electronic claims file. In October 2018, the Board denied an initial rating greater than 10 percent for low back strain. The Veteran appealed the claim to the United States Court of Appeals for Veterans Claims (Court) and through a September 2019 Joint Motion for Partial Remand (JMPR), the claim was remanded for the Board to provide adequate reasons and bases for its findings. Specifically, the parties to the JMPR noted that the Board failed to discuss favorable evidence of functional loss due to pain, weakness, fatigue and lack of endurance, and the Veteran's difficulty with walking, lying down, household chores, yardwork and standing and sitting for more than 30 minutes and the use of a cane. The Board did not discuss limitations during flare ups and the diagnoses of deformities and lumbar spine disease that could potentially warrant a higher rating. In May 2020, the Board granted an initial rating of 20 percent for a low back condition (claimed as low back strain). The Veteran again appealed to the Court and through a December 2020 JMPR, the claim was remanded for the Board to provide adequate statement of reasons or bases for its findings and conclusions. Specifically, the Court found that the Board did not adequately address whether the Veteran's back condition resulted in instability of station or interference with sitting. After being notified of the Court's decision, the Veteran submitted additional evidence in April 2021. In pertinent part, the Veteran stated that this condition is worsening with his age. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c). 38 U.S.C. § 7107(b). The issue of a rating greater than 20 percent for a low back condition (claimed as low back strain) In light of the Veteran's statements of his back disability getting worse with age and the most recent VA examination for his service-connected low back disability having taken place in August 2017, the Board finds that the Veteran should be afforded a new VA examination to obtain contemporaneous, pertinent information to assess the current nature and severity of his service-connected low back disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The matters are REMANDED for the following action: Schedule the Veteran for a new VA examination as to the severity of his service-connected low back disability. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should examine the Veteran and render findings in accordance with the currently applicable disability benefits questionnaire. The examination must comply with the requirements of 38 C.F.R. § 4.59 involving measurements of passive and active range of motion - in both weight bearing and non-weight bearing. The examiner must explain why any of these clinical tests are not appropriate or could not be performed. A complete rationale for any opinions expressed should be provided. If flare-ups are noted, the examiner should note whether pain during flare-ups additionally limits functional ability. The examiner should note whether there are any additional degrees of loss of motion due to pain during flare-ups (if it is not feasible to quantify, please explain). Also, the examiner should ask the Veteran to describe in his own words whether there is any additional functional loss during flare-ups, and the examiner should note the frequency, duration, and severity of flare-ups. The examiner should also note whether weakened movement, excess fatigability, incoordination, or pain significantly limits functional ability with repeated use over time. In addition, the examiner should also examine if the Veteran's low back disability causes instability of station, disturbance of locomotion, or interference with sitting, standing, and weight bearing. If so, the examiner should note whether there are any additional degrees of loss of motion as a result (if it is not feasible to quantify, please explain). Regarding both flare-ups and repeated use over time, please note to the VA examiner that if additional functional loss cannot be described in terms of degrees of limitation of motion, it should be clear that an examiner has "considered all procurable and assembled data before stating that an opinion cannot be reached," and "that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large." The Board may "accept a VA examiner's statement that he or she cannot offer an opinion without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner's shortcomings or general aversion to offering an opinion on issues not directly observed." See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Yun, 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.