Citation Nr: 21031983 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 13-18 665 DATE: May 25, 2021 REMANDED Entitlement to a rating in excess of 10 percent for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from November 1997 to June 2007. His decorations include the National Defense Service Medal and the Parachutist Badge. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The RO, in pertinent part, granted service connection and a 0 (zero) percent (noncompensable) rating for a lumbar spine disability, effective November 23, 2009. The issue on appeal was previously before the Board in July 2017, September 2019, and April 2020. In July 2017, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development. In November 2018, after taking further action, the AOJ increased the rating for the Veteran's low back disability to 10 percent, effective January 24, 2011. After remanding the appeal a second time in September 2019, the Board, in an April 2020 decision, increased the rating for the Veteran's low back disability to 10 percent for the period on appeal prior to January 24, 2011 and denied a rating in excess of 10 percent for the entire appeal period. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court granted a Joint Motion for Partial Remand (JMPR) filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board's decision insofar as it denied a rating in excess of 10 percent for the Veteran's low back disability and remanding the matter for readjudication. Entitlement to a rating in excess of 10 percent for a lumbar spine disability is remanded. In the JMPR filed with the Court, the parties to the appeal agreed that the Board erred when it failed to ensure that VA had satisfied its duty to assist. More specifically, the parties agreed that, in evaluating the Veteran's lumbar spine disability, the Board had relied on multiple inadequate VA examination reports. A January 2011 VA examiner, for example, failed to conduct all necessary range of motion testing. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). In addition, January 2018 and December 2018 VA examination reports contained inadequate information regarding the functional impact of flare-ups of the Veteran's back disability. See Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017). Further, while a December 2019 examiner opined that pain and fatigability caused functional loss, but did not result in further loss of range of motion, she offered no further description of the limitations resulting from the functional loss. Rather, the examiner merely stated that pain and fatigability increased during a flare-up or following repeated use, which did not adequately convey the Veteran's limitations. The parties agreed that the December 2019 examination report did not demonstrate that the examiner was sufficiently informed of, or conveyed, the limitations the Veteran experienced during flare-ups or with repeated use. Pursuant to the terms of the JMPR, a new medical examination is required. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate); see also April 2021 Informal Hearing Presentation. This matter is REMANDED for the following action: 1. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 2. After the foregoing development has been completed to the extent possible, schedule the Veteran for an examination of his lumbar spine. The examiner should provide a full description of the Veteran's associated functional impairments as they relate to the relevant rating criteria. The examination must include testing for pain on both active and passive motion, and in weight bearing and non-weight bearing, if possible. If such testing is not feasible, the examiner should explain why. The examiner must attempt to elicit information regarding functional loss due to flare-ups and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran's competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. The examiner should also be asked to review the record for purposes of providing a retrospective opinion with respect to the severity of the Veteran's lumbar spine disability during the period beginning November 23, 2009. Specifically, the examiner should be asked to indicate whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that, during all or any portion of the period in question beginning November 23, 2009, the Veteran had pain in the lumbar spine on active motion, passive motion, in weight bearing, and in non-weight bearing. The examiner should also be asked to indicate whether it is at least as likely as not that during all or any portion of the period in question beginning November 23, 2009, the Veteran experienced functional loss in the lumbar spine due to flare-ups and repeated use over time. If the answer to that question is yes, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran's competent statements with respect to the frequency, duration, characteristics, and severity of his limitations. In so doing, the examiner should offer an opinion as to whether it is at least as likely as not that the additional loss of function experienced by the Veteran as demonstrated currently has been present to the same degree since November 23, 2009. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time at the time of examination, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner's conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issue on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph T. Leonard, 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.