Citation Nr: 21030483 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-32 389 DATE: May 19, 2021 REMANDED Entitlement to an initial disability rating in excess of 10 percent for the period prior to April 4, 2016, and in excess of 40 percent thereafter, for the Veteran's service-connected lower back condition is remanded. The propriety of the reduction of the Veteran's service-connected lower back condition from 40 percent disabling to 10 percent disabling, effective April 1, 2018, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from June 1991 to November 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2012 and January 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in November 2018, it was remanded for additional development. Specifically, the RO was instructed to provide the Veteran with a statement of the case (SOC) which addressed his reduction claim and a supplemental statement of the case (SSOC) which readjudicated the Veteran's increased rating claim. The RO undertook the appropriate development. As such, the Board finds that the AOJ substantially complied with the directives in the November 2018 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Lower Back Condition While the Veteran was provided with an August 2017 VA examination regarding his lower back condition, the Board finds this examination to be inadequate. In proffering their opinion, the examiner failed to address the functional impact of the Veteran's flare-ups on his lower back condition. The Board notes that in his June 2018 Appellant's Brief, the Veteran indicated that his range of motion is severely limited when he experiences a flare up. Further the VA examiner failed to describe the point in the Veteran's range of motion that limitation of motion was attributable to the Veteran's pain and did not adequately elicit information to describe the Veteran's limitation of motion. As such, the VA examiners did not adequately assess the Veteran's functional loss of his lower back disability in compliance with the holdings in DeLuca v. Brown, 8 Vet. App. 202, 206 (1995), Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The Board also notes that the examiner indicated that the Veteran would only perform 20 degrees of lumbar flexion and stated this "would be consistent with an ankylosed lumbar spine, which the Veteran does not have according to his history, presentation, and diagnostic evidence." Further, the examiner noted that the Veteran never stated that he was unable to flex beyond 20 degrees, just that he did not want to during the examination. In a recent decision, the United States Court of Appeals for Veterans Claims (CAVC) indicated that when evaluating a disability under VA's General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosisi.e., functional loss consistent with that contemplated by ankylosis. See Chavis v. McDonough, No. 18-2928 (April 2021). As such, the Board finds a new exam is warranted to address whether the Veteran has ankylosis of his lumbar spine, or the functional equivalent thereof. As noted above, the examiner reported that during the examination that the Veteran indicated he did not want to flex his lumbar spine further for fear of his back "locking up." The Veteran is reminded that the duty to assist is a two-way street, therefore, he is obligated to cooperate with the examiner's efforts to evaluate the nature and current severity of symptomology. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Therefore, the Board finds an additional examination is required to adequately assess the Veteran's lower back condition. Reduction Propriety Finally, the Board notes the issue of whether the reduction of the Veteran's lower back condition's disability rating was proper must be held in abeyance at this time, because this issue is intrinsically intertwined with the above-noted remanded issue. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Schedule the Veteran for an appropriate VA examination, with an examiner who has yet to examine the Veteran, to determine the current nature and severity of his lower back disability. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. (a.) The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. 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 describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. (b.) The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If the Veteran is not currently experiencing a flare-up, then based on relevant information elicited from the Veteran, a review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] (c.) The examiner must indicate whether the Veteran has ankylosis of the lumbar spine. If ankylosis is not diagnosed then the examiner must answer whether there is evidence demonstrating the functional equivalent of ankylosisi.e., functional loss consistent with that contemplated by ankylosis. (d.) To the extent possible, the examiner should identify any symptoms and functional impairments due to the lower back disability and comment on the effect of these disabilities on any occupational functioning and activities of daily living. (e.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner must provide a complete rationale for all proffered opinions. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete answer as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Gresham 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.