Citation Nr: 21040569 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 18-08 347 DATE: July 6, 2021 REMANDED Entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the lumbosacral spine from April 13, 2017 to October 1, 2020, is remanded. Entitlement to an evaluation in excess of 40 percent for degenerative disc disease of the lumbosacral spine from October 2, 2020 on, is remanded. REASONS FOR REMAND The Veteran had active service with the Navy from September 1975 to September 1979. This matter is before the Board of Veterans' Appeals (the Board) on appeal from a June 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the evidence of record. The Board notes a November 2020 rating decision issued a partial grant of the Veteran's appeal. The Veteran's degenerative disc disease of the lumbosacral spine evaluation was increased to 40 percent effective October 2, 2020. As this increase did not constitute a full grant of the benefit sought for the entire appeal period, the Veteran's claim for a higher evaluation remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). As such, the issues on appeal before the Board are for an evaluation in excess of 20 percent from April 13, 2017 to October 1, 2020, and an evaluation in excess of 40 percent from October 2, 2020 on for his service-connected degenerative disc disease of the lumbosacral spine. In July 2020, the Board remanded the Veteran's claim for additional development. The Veteran testified in his February 2020 hearing to receiving treatment from private providers. These private treatment records were not in the evidence of record. The July 2020 Board remand requested the RO obtain these private treatment records. While OrthoAtlanta records were added to the claims file in August and October 2020, records related to his low back physical therapy appear to be incomplete. A July 2020 letter from R.L. (PT), a private treatment provider, noted the Veteran received physical therapy for his low back pain from April to May 2019, August to October 2019, and February 2019 to March 2020. He presented for treatment due to aggravation of his low back pain about every three to four months since April 2019. Additionally, in August 2019, the Veteran indicated receiving treatment from the Atlanta VA Medical Center (VAMC) since 2009. In July 2020, the Board remanded for updated VA treatment records from May 2017 on. In August 2020, Atlanta VAMC records from March 2020 to August 2020 were added to the claims file. No other VA treatment records after May 2017 were added to the claims file. It is not clear if the Veteran's VA treatment records since May 2017 were simply not obtained or do not exist. Therefore, on remand the RO should attempt to obtain and associate the Veteran's private and VA treatment records with the claims file. Furthermore, during the February 2020 hearing, the Veteran reported use of a wheelchair during flare-ups. In his December 2017 notice of disagreement, he reported the May 2017 VA examiner had failed to consider his flare-ups, which occurred several times a year. The Board found his presentation at the hearing in a wheelchair suggested a worsening of his lumbar condition and a new VA examination was necessary to ascertain the current severity of his condition. The Veteran was afforded a VA examination in November 2020. The examiner noted pain causing functional loss of the spine. However, the examiner did not specify where in the regular range of motion pain began to cause functional loss, simply that the Veteran reported he could not perform some of the range of motion maneuvers due to pain. The Veteran reported severe flare-ups every six weeks lasting four weeks. He experienced a constant, dull pain and sharp pain during flare-ups. The examination was not conducted during a flare-up and the examiner found it was neither medically consistent nor inconsistent with the Veteran's description of functional loss during a flare-up. The examiner found the Veteran had no significant functional limitation due to pain, weakness, fatigability, or incoordination during a flare-up. This is inconsistent with the Veteran's February 2020 testimony that he used a wheelchair during flare-ups as well as the November 2020 examiner's own finding that he occasionally used a wheelchair. Additionally, the November 2020 VA examination does not comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017). The examiner failed to estimate the functional loss that would occur during a flare-up and, if feasible, portray in terms of the degree of additional loss of range of motion during flare-ups. Where the VA undertakes to provide the Veteran with an examination, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, another VA examination is warranted. The matters are REMANDED for the following action: 1. Take appropriate steps to obtain any outstanding private or VA treatment records. If any requested records are not available or the search for any such records otherwise yields negative results, that fact must be clearly documented in the claims file. Efforts to obtain these records must continue until it is determined they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be documented in the record and required notices must be provided to the Veteran. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (a.) The examiner should render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran likely experiences functional loss due to pain or any of the other symptoms noted above during flare-ups and/or with repeated use. (b.) The examiner is to report the range of motion measurements in degrees. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; (2) after repetitive use over time; (3) in weight bearing; (4) non-weight bearing; (5) active motion; (6) passive motion; and (4) as a result of pain, weakness, fatigability, or incoordination. The examiner should also address whether there is a difference in active range of motion, versus passive range of motion. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In any event, the examiner should fully describe the functional limitations. (c.) Regarding the description of functional limitation due to pain, weakness, fatigability, or incoordination during flare-ups, the examiner shall inquire as to periods of flare-up, and note the frequency, severity, and duration of any such flare-ups from the Veteran. Any additional impairment on use or in connection with flare-ups should be described in terms of the degree of additional range of motion loss. The examiner should specifically describe the severity, frequency, and duration of flare-ups; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, such flare-ups affect functional impairment. 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. (d.) The examiner should also indicate whether the Veteran suffers from intervertebral disc syndrome, and if so, whether this condition has resulted in incapacitating episodes. (e.) The Veteran's claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination, and the examination report should reflect review of the record. All necessary tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with the Veteran's lumbar spine disability. 3. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Byers 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.