Citation Nr: 21029348 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 09-41 202 DATE: May 13, 2021 REMANDED The issue of entitlement to an increased rating in excess of 10 percent disabling for degenerative arthritis of the spine prior to April 11, 2016, and in excess of 20 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1984 to December 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). A January 2019 Board decision denying an increased rating was vacated and remanded by the United States Court of Appeals for Veterans Claims (Court) in a February 2020 Joint Motion for Remand (JMR). The Board remanded this matter for further development consistent with the JMR in November 2020. 1. The issue of entitlement to a rating in excess of 10 percent for degenerative arthritis of the spine prior to April 11, 2016, and in excess of 20 percent thereafter is remanded. The Veteran was afforded a new VA examination to determine the current severity of service-connected degenerative arthritis of the spine in December 2020. The RO obtained an addendum seeking clarification of certain matters from the examiner in January 2021. Unfortunately, the December 2020 examination and January 2021 addendum do not substantially comply with remand directives and an additional remand is warranted. The December 2020 examiner indicated that there was no additional loss of function or range of motion after observed repetitive use and opined that pain, weakness, fatigability, or incoordination would not significantly limit functional ability with repeated use over a period of time. In the January 2021 addendum, however, this examiner indicated that the Veteran was able to perform repetitive range of motion maneuvers with limitation due to pain and opined that pain was the functional limitation that could significantly limit functional ability during flare-ups and repeated use over time. These conclusions are inconsistent. In addition, the examiner did not identify the point at which pain began for measured ranges of motion. Further, the 2020 examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy, however, VA treatment records contain multiple complaints of back pain radiating down the Veteran's legs, right more than left, leading to an assessment of suspected radiculopathy in September 2020. Accordingly, a new, comprehensive examination is warranted to determine the current severity of the Veteran's degenerative arthritis of the spine. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with the appropriate clinician to determine the current severity of his degenerative arthritis of the spine. The examiner should review the claims file, and all indicated tests and studies should be performed. The examiner should report all signs and symptoms necessary for evaluation of the Veteran's degenerative arthritis under the rating criteria. In particular, the examiner should provide range of motion test results (in degrees) on active motion, passive motion, weight-bearing, and non-weight-bearing. The examiner should specifically indicate whether the Veteran experiences any limitation of motion that is attributable to pain and at what point during the range of motion. 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. The examiner should offer an opinion as to whether the Veteran's condition would result in additional functional limitations during periods of flare-ups or after repeated use over time. If the examination is not conducted during a period of a flare-up or after repeated use over time, the examiner must provide an estimated opinion of additional functional limitations based upon the evidence of record, including the Veteran's lay statements and medical evidence of record. If the examiner is unable to provide such an opinion, the inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. (Continued on the next page) The examiner should specifically discuss the Veteran's complaints of low back pain that radiates to his legs and the suspected diagnosis of radiculopathy. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Monica Ball Jackson, 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.