Citation Nr: 21039820 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 13-36 371 DATE: July 1, 2021 REMANDED Entitlement to a rating higher than 20 percent for a lumbar herniated disc and spondylosis (low back disability) is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1978 to May 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Board remanded the matter in June 2015 and November 2017. It denied a higher rating for the Veteran's low back disability in an October 2019 decision. That decision was vacated by the United States Court of Appeals for Veterans Claims (Court) in a November 2020 decision of the Court. The Court remanded the matter for further proceedings consistent with its decision. The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2014. A transcript of the hearing is of record. Entitlement to a rating higher than 20 percent for a low back disability is remanded. In its November 2020 decision, the Court found, in part, that the June 2018 VA examination report contains an "apparent inconsistency," in that the Veteran reported he could not lift his leg up to tie his shoe or put his sock on, and yet the examiner estimated that the Veteran's forward flexion of the thoracolumbar spine during flare-ups would continue to be to 90 degrees, the same range that was recorded on testing at the examination. He was not experiencing a flare-up at the time of the examination, according to the report. The Court found it unclear why the examiner would estimate the same range of forward flexion during flare-ups as recorded on testing on the day of the examination, in light of the Veteran's description of functional impairment. The Court also found that the Board, in its October 2019 decision, did not consider the ameliorative effects of the medications the Veteran takes for his low back disability. See Jones v. Shinseki, 26 Vet. App. 56, 61 (20120. On remand, a VA examiner should be asked to review the pertinent medical records, including the June 2018 VA examination report, and provide a new estimate as to the degree of range of motion loss, if any, during flare-ups. A complete explanation must be provided in support of that estimate, which includes consideration of the Veteran's descriptions of functional impairment in the June 2018 report. An exact estimate need not be provided. Rather, the examiner need only estimate, if possible, whether forward flexion would generally be limited to 30 degrees or less during flare-ups, as that is the only basis for assigning a higher rating based on limitation of motion under the applicable rating criteria. See 38 C.F.R. § 4.71a, Diagnostic Code 5239. The examiner should also be asked to address whether symptom relief provided by the Veteran's medications affects his range of motion of the thoracolumbar spine. If so, the examiner should be asked to estimate whether forward flexion would be limited to 30 degrees or less if the Veteran were not experiencing relief from medications. The matters are REMANDED for the following action: 1. Add to the file any outstanding VA treatment records pertaining to the Veteran dated since January 2021. 2. Obtain a VA medical opinion addressing the issues below. The claims file must be made available to the examiner for review for purposes of formulating the opinion. If the examiner finds that the requested opinion cannot be provided without examining the Veteran directly, then a new examination should be arranged. Based on review of the medical records, including the June 2018 VA examination report and prior VA examination reports dated in October 2010, October 2013, and October 2015, and any other pertinent records, the examiner is asked to address the following issues. (a.) The examiner is asked to provide an estimate of additional loss of forward flexion of the thoracolumbar spine, if any, during a flare-up or on repeated use over time. In this regard, the examiner should state, if possible, whether during flare-ups or with repeated use over time, forward flexion would be limited to 30 degrees or less. A more exact estimate is not necessary. A complete explanation must be provided, which includes consideration of the Veteran's descriptions of functional impairment, such as difficulty tying his shoe or putting his sock on, as stated in the June 2018 examination report. If the examiner is unable to provide such an estimate, the examiner must explain why the available information including the Veteran's statements, medical history, and the examination findings set forth in the prior reportsis not sufficient for that purpose. (b.) The examiner is also asked to determine, if possible, whether symptom relief provided by the Veteran's medications may affect his range of motion of the thoracolumbar spine. If so, the examiner should be asked to estimate whether forward flexion would be limited to 30 degrees or less if the Veteran were not experiencing relief from the medications. A complete explanation must be provided. If the examiner is unable to provide such an estimate, the examiner must explain why the available information including the Veteran's statements, medical history, and the examination findings set forth in the prior reportsis not sufficient for that purpose. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin, 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.