Citation Nr: 21032034
Decision Date: 05/25/21	Archive Date: 05/25/21

DOCKET NO. 13-20 830
DATE: May 25, 2021

REMANDED

Entitlement to a disability rating in excess of 20 percent for service-connected degenerative disc disease (DDD) of the lumbar spine from October 18, 2011 is remanded.

REASONS FOR REMAND

The Veteran had active service from October 1972 to November 1975.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision.  The Board remanded the appeal in July 2018, and subsequently denied the appeal in February 2020. 

That denial was appealed to the United States Court of Appeals for Veterans Claims (Veterans Court) and remanded pursuant to a Joint Motion for Partial Remand (Joint Motion) in January 2021.

Entitlement to a disability rating in excess of 20 percent for service-connected DDD of the lumbar spine from October 18, 2011 is remanded.

As discussed in the Joint Motion, the most recent VA examination was not adequate in that it provided a self-contradictory response to the portion of the examination requesting an estimation of the Veteran's ranges of motion of the lumbar spine during a flareup.  Consequently, a remand for an additional examination is required.

The matter is REMANDED for the following actions:

1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine condition.  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.  In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing.  

Additionally, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups.  If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements.  

If it is not possible to provide a specific measurement 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).

2. After the development requested above (along with any other development that may be indicated as a result) is completed, readjudicate the claim on appeal.  If the claim is not granted to the Veteran's satisfaction, provide him and his representative with a responsive Supplemental Statement of the Case and the requisite time to respond.  Then, if the matter is otherwise in order, return the matter to the Board for additional appellate review. 

 

Roya Bahrami

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Steven H. Johnston, 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.