Citation Nr: 21040450 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 13-11 682 DATE: July 3, 2021 REMANDED For the period from September 30, 2009 to July 20, 2014, entitlement to a disability rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine (low back disability) is remanded. For the period from May 4, 2015 to present, entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine is remanded. REASONS FOR REMAND The Veteran had active military service from June 1977 to June 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of a VA Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a February 2013 hearing before the Board of Veterans' Appeals (Board). The issue of entitlement to an increased rating for a low back disability was remanded by the Board in March 2015 and August 2017. In a February 2020 Board decision, the Board denied ratings in excess of 20 percent for the Veteran's back disability for the periods from September 30, 2009 to July 20, 2014 and from May 4, 2015 onward. A 40 percent rating was granted for the period from July 21, 2014 to May 3, 2015, and a disability rating in excess of 20 percent for radiculopathy of the left lower extremity was denied. Subsequently, the Veteran appealed the denial of his increased rating claims to the United States Court of Appeals for Veterans Claims (Court/CAVC). In a February 2021 Joint Motion for Partial Remand, the parties agreed that the Court could not disturb the Board's favorable finding concerning the period from July 21, 2014 to May 3, 2015 for the back disability, and they asked the Court to dismiss the appeal of the Board's decision to the extent that it found that Appellant was not entitled to a disability rating in excess of 40 percent for DDD of the lumbar spine for the period from July 21, 2014, to May 3, 2015 and a rating in excess of 20 percent for radiculopathy of the left lower extremity as secondary to the service-connected disability of DDD of the lumbar spine. Accordingly, only the appeal for a staged increased ratings for the Veteran's back disability for the periods September 30, 2009 to July 20, 2014 and from May 4, 2015 to present are considered in this decision. In a March 2021 decision, the Court granted the parties' Joint Motion for Partial Remand (JMPR), partially vacated the Board's February 2020 decision, and remanded the matter to the Board for action consistent with the ruling. The claim is now once again before the Board. In the February 2021 JMPR, the parties agreed that the Board erred by relying on the September 2017 VA examination, which indicated that the Veteran experienced flare-ups that caused pain, fatigue, and lack of endurance, which resulted in functional loss. However, the examiner stated that they were unable to describe that functional loss in terms of range of motion but did not provide a rationale for that inability. The parties agreed that the Board failed to address whether the VA examiner's rationale was adequate and complied with the requirements set forth in Sharp v. Shulkin, 29 Vet. App. 26, 35 (2017) and Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). The Board notes that the Veteran was afforded a new VA examination for his back disability in June 2021 that did provide an estimate for the decrease in the Veteran's range of motion during flare-ups, so a new VA examination is not called for in this case. Accordingly, these claims are remanded for a VA addendum opinion to address the estimated decrease in the Veteran's range of motion during flare-ups at the time of the September 2017 VA examination. The matters are REMANDED for the following action: Obtain an addendum VA medical opinion from the September 2017 VA examiner, or, if unavailable, from another appropriate examiner. If the reviewing examiner deems a new examination necessary and feasible, one should be obtained. The examiner must review pertinent documents in the Veteran's claim file in conjunction with the prior examination and this remand. The examiner is asked to provide an estimate for the decrease in the Veteran's range of motion during flare-ups at the time of the September 2017 VA examination. If the examiner is unable to provide such an estimation, they must provide a detailed rationale as to why that estimate cannot be provided. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Hicks, 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.