Citation Nr: 21032608 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 17-03 744 DATE: May 27, 2021 REMANDED Entitlement to an evaluation in excess of 40 percent for degenerative arthritis of the lumbar spine, for the period from April 1, 2018 is remanded. REASONS¬ FOR REMAND The Veteran served on active duty from September 1982 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) from a May 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of this appeal, the Veteran was granted a 40 percent rating from April 1, 2018. However, as the increase does not constitute a full grant of the benefit sought, the Veteran's claim remains on appeal. See AB v. Brown, 6 Vet. App. 34, 39 (1993). The Board notes the Veteran is in receipt of a 100 percent rating for his lumbar spine disability on the basis of convalescence for the period from September 18, 2017 to April 1, 2018. He has filed a separate appeal to lengthen the period for which he is entitled to a convalescent rating. In June 2018, the Veteran opted into the Rapid Appeals Modernization Program (RAMP) with regard to this issue only, and therefore it is not before the Board at this time, and the Board will not address whether a convalescent rating is warranted after April 1, 2018. This matter was previously before the Board in May 2019, when it was remanded for a new VA examination, and it has since returned to the Board for further appellate review. Entitlement to an evaluation in excess of 40 percent for degenerative arthritis of the lumbar spine for the period from April 1, 2018 is remanded. The Veteran had surgery on September 18, 2017 that was meant to address his lumbar spine disability and associated radiculopathies. Thus, in its May 2019 remand, the Board instructed the agency of original jurisdiction (AOJ) to obtain a new VA examination. The Veteran was afforded a new VA examination in May 2019. The Veteran also underwent a VA examination in August 2019 in relation to his application for housebound status. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In the May 2019 examination, the Veteran reported experiencing flare-ups that caused him excruciating pain, increasing his pain level from his base level of 8/10 to a 10/10. The Veteran described these flare-ups as lasting a couple of hours and estimated he had seven such flare-ups within the previous 12 months, including one episode which led to an ER visit. When asked to opine on whether the Veteran experienced additional functional loss during his flare-ups, the examiner merely stated that the Veteran had not complained of any functional loss during his flare-ups other than pain. However, the examiner failed to consider how the Veteran's increase in pain itself might cause functional loss, even though the Veteran did not outright describe specific limitations. Thus, because the examiner failed to properly opine on how the Veteran's flare-ups impact his functional loss, the Board finds this examination to be inadequate. In the August 2019 examination for housebound status, the Veteran reported that his flare-ups felt like pins and needles and numbness going down his right thigh, occurred three to four times a week for 10 minutes at a time and were what he called "bad" in severity. When opining on how the Veteran's flare-ups impact his functional ability, the examiner stated "[a]fter review of the Veteran's records including the order request, DBQ, physical exam, reported history and subjective complaints, relevant evidence of record and using my medical knowledge and expertise, I have no basis to offer additional losses of function or motion with repeated use over time." However, the examiner fails to address how the Veteran's increase in pain during flare-ups reported during his May 2019 examination may contribute to his functional loss. While the Veteran did not explicitly describe functional loss during that examination, the Veteran's increase in pain from an 8/10 to a 10/10 could cause additional functional loss. Thus, because the examiner failed to properly opine on how the Veteran's flare-ups impact his functional loss, the Board finds this examination to be inadequate. Additionally, 38 C.F.R. §§ 4.40 and 4.45 permit consideration of a higher evaluation to be awarded where there is additional functional loss and/or limitation of motion due to factors such as pain, weakened movement, excess fatigability, and incoordination during flare-ups and/or after repeated use over time.). See Mitchell v. Shinseki, 25 Vet. App. 32, 36-37 (2011); see also Deluca v. Brown, 8 Vet. App. 202, 205-06 (1995). This additional loss can be considered under the general Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with the loss contemplated by ankylosis, or if the Veteran's range of motion is functionally equivalent to ankylosis. See Chavis v. McDonough, No. 18-2928, 2012 LEXIS 660 (Vet. App. April 16, 2021. While the May 2019 examiner noted forward flexion of 20 degrees and the August 2019 examiner noted a forward flexion of 25 degrees, neither examiner provided an estimate on the Veteran's range of motion during a flare-up, nor did either examiner address how the Veteran's increased 10/10 pain during is flare-ups might otherwise impact his ability to function. Without this information, the Board cannot determine whether the Veteran's lumbar spine disability is functionally equivalent to ankylosis. Seeing as the May 2019 and August 2019 VA examinations are inadequate and seeing as the Court has recently ruled that 38 U.S.C. §§ 4.40 and 4.45 can be applied to an evaluation based on ankylosis, the Board must remand this matter to obtain an addendum opinion. Accordingly, this matter is REMANDED for the following action: 1. Obtain an addendum opinion from a qualified examiner regarding the current nature of the Veteran's degenerative arthritis of the lumbar spine. If the examiner determines the Veteran should be given another examination (including via telehealth if an in-person examination is not possible) to answer the below questions, one should be scheduled. 2. The examiner is asked to opine on how the Veteran's reported severity, frequency, duration, or functional loss during his flare-ups affects his range of motion and provide estimates of any motion loss in degrees. 3. The examiner must also opine on whether the Veteran's lumbar spine range of motion and any functional loss thereof is functionally equivalent to ankylosis. (Continued on the next page) A complete rationale for all opinions must be provided. If the examiner cannot provide a requested opinion, including estimated range of motion, without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be given due to limitations of knowledge in the medical community at large and not those of the particular examiner. M. Mills Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gabrielle Ongies, 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.