Citation Nr: 21032351 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 16-17 629 DATE: May 26, 2021 REMANDED Entitlement to rating in excess of 20 percent for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from October 1954 to October 1958. In May 2019, the Board of Veterans' Appeals (Board) issued a decision denying the Veteran's claim. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2020 Order, the Court granted a Joint Motion for Remand (JMR), and vacated and remanded the Board's decision for compliance with the instructions in the JMR. In the JMR, the parties agreed that the Board should remand this matter for a new Department of Veterans Affairs (VA) examination in compliance with Correia v. McDonald, 28 Vet. App. 158 (2016) with discussion on the effect of painful motion on weight bearing for the Veteran's low back disability. The Board remanded the claim in November 2020, and the Veteran underwent a VA examination in February 2021. The Board notes that the crux of the JMR was that previous examinations of the Veteran's back were inadequate because the examinations failed to comply with Correia. The parties to the JMR noted that a May 2012 VA examiner found that the Veteran's back pain was "exacerbated by trunk range of motion and weight bearing activities." The parties to JMR also noted that a May 2013 VA examiner found that it was difficult for the Veteran to "sit for any extended time and he [could not] lift much weight or twist a lot" and that there was interference with weight bearing. Finally, the parties to the JMR noted that the January 2018 VA examiner found pain on weight bearing. The Board remanded the claim so that the Veteran could be scheduled for a VA examination and so the VA examiner could "address whether the Veteran has pain on weight bearing." The February 2021 VA examiner stated that she reviewed the records. However, she found that there was no pain on weight bearing. The Board notes that this is in contrast to the three previous examinations without any explanation or attempt to reconcile the inconsistency. Additionally, the report is internally inconsistent in so far as the Veteran reported constant back pain. Consequently, it would seem that there was evidence of pain with weightbearing. Given that Court, in acknowledgment of the argument presented by the parties to the JMR, vacated the Board's prior decision because the previous examinations failed to discuss the effect that pain on weight bearing has upon the Veteran's function, the Board finds the February 2021 VA examination similarly inadequate. The matter is REMANDED for the following action: Schedule the Veteran for a VA back examination to determine the current symptoms, level of severity, and functional impairment associated with his low back disability. The claims file should be reviewed by the examiner. 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 or after repetitive use over time. If it is not possible to specifically estimate lumbar spine range of motion during flare-up or after repetitive use over time without speculation, the examiner is asked to opine as to whether during these conditions forward flexion of the lumbar spine would be limited to 30 degrees or less. If motion would be greater than this, that should be stated. If this cannot be accomplished 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) and explain why that is the case. The examiner must address whether the Veteran has pain on weight bearing and if so, to discuss the effect that pain on weight bearing has upon the Veteran's function. In so doing, the examiner should note the findings of the May 2012, May 2013, and January 2018 VA examiners. If the examiner's findings conflict with these findings, the examiner should attempt to reconcile the inconsistencies. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Prem, 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.