Citation Nr: 21039714 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 16-57 622 DATE: July 1, 2021 REMANDED Entitlement to an initial disability rating in excess of 20 percent for service-connected lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty with the United States Marine Corps from August 1983 to August 1987 and with the United States Air Force from November 2001 to May 2003. This appeal comes before the Board of Veterans' Appeals (Board) from a September 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, granted service connection for degenerative arthritis of the spine and assigned a 10 percent disability rating, effective May 15, 2013. The Veteran's notice of disagreement (NOD) was received in November 2014. The RO issued the statement of the case (SOC) in September 2016, and the Veteran's VA Form 9, substantive appeal was received in November 2016. During the pendency of the appeal, the RO issued a rating decision in February 2017 finding that a clear and unmistakable error was made in the initial assignment of a 10 percent rating for service-connected degenerative arthritis of the spine. As a result, the RO granted an increased rating for the service-connected degenerative arthritis of the spine to 20 percent, effective from May 15, 2013. In March 2021, the Veteran submitted a lay statement wherein he states, "Request a copy of my DOC #1657622. Please rush." Without more information, it is unclear what document, if any, the Veteran is requesting. Moreover, since the Veteran's claim is being remanded, as specifically requested by his representative in the October 2020 Appellate Brief, the Board finds that there is no prejudice to the Veteran in remanding the case to the RO. Lastly, the Board notes that the Veteran has been represented by the Vietnam Veterans of America (VVA) during the whole course of this appeal. The appeal was certified to the Board in March 2017. In April 2021, more than 90 days after the case was certified to the Board, the Veteran submitted VA Form 21-22 appointing Disabled American Veterans (DAV) as his new representative. The Board notes that 38 C.F.R. § 20.1305 (designated 20.1304 prior to January 18, 2019) requires a showing of good cause for a change in representation in excess of 90 days after the certification of the appeal to the Board. As the matter on appeal was certified to the Board in March 2017, the Veteran's request for a new representative is beyond 90 days after certification. Neither the Veteran nor the designated representative have provided any reason for the requested change of representation. As such, the Board finds that no good cause has been shown to change representation, and, therefore, the proper representation is the Vietnam Veterans of America. Entitlement to an initial disability rating in excess of 20 percent for service-connected lumbar spine disability. The Veteran seeks a higher rating for his service-connected lumbar spine disability. The Veteran last underwent a VA examination in September 2014. The September 2014 examiner marked that the Veteran experiences flare-ups but also stated that the Veteran denied flare-ups because he experiences pain on a near daily basis. Similarly, the examiner stated that the Veteran did not have additional limitation in range of motion of the back following repetitive use testing but then found that the Veteran has functional loss after repetitive use over time due to contributing factors of disability including: less movement than normal, weakened movement, excess fatigability, pain on movement, instability of station, disturbance of locomotion, interference with sitting, standing and/or weight-bearing, and lack of endurance. With regard to additional functional limitations during flare-ups, the examiner stated that "it would be pure speculation to state if, with a significant flare-up, there would be any change in range of motion or to what degree." The September 2014 VA examination report is inadequate because the examiner expressed a general aversion to offering an opinion on issues not directly observed and thus does not comply with the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Sharp requires the examiner to consider all procurable and assembled date and "explain the basis for his or her conclusion that a non-speculative opinion cannot be offered" because "it must be apparent that the inability to provide an opinion reflects the limitation of knowledge in the medical community at large and not a limitation of the individual examiner." Id. Here, it is unclear whether the basis of the examiner's opinion was due to limitation of knowledge in the medical community at large or the examiner's own limitation. Additionally, the Board notes that the Veteran has consistently stated that the September 2014 VA examiner did not review his medical records prior to the examination and that the examiner only asked him to stand up and walk and did not perform an actual evaluation. See November 2014 NOD; see also November 2016 VA Form 9 Board Appeal. On remand, a new, Sharp-compliant VA examination must be conducted. The matters are REMANDED for the following action: 1. After obtaining the necessary authorization, update the file with any VA or private treatment records relevant to the Veteran's claims. If any requested records are unavailable, the Veteran should be notified to that effect. 2.Then, schedule the Veteran for a VA spine examination to explore the current nature and severity of his lumbar spine disability. The claims folder must be provided to and reviewed by the examiner as part of the examination. All tests, studies, and evaluations should be performed as deemed necessary by the examiner, and the results of any testing must be included in the examination report. The examiner is asked to describe the current nature and severity of the Veteran's lumbar spine disability. All pertinent symptomatology and findings should be reported in detail in accordance with VA rating criteria. Range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing must be conducted. 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 rationale for all opinions expressed must be provided. In particular, the examiner is directed to estimate the degree of functional loss during flareups and with repeated use over time, as represented by lost range of motion of the lumbar spine. The examiner must elicit from the Veteran such information as is necessary to make such a determination. It is understood that any determination of functional loss in situations not under direct observation is an estimate, the furnishing of which may require the examiner to engage in a degree of speculation. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Modesto, Victor 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.