Citation Nr: 21041019 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 18-12 393 DATE: July 7, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent prior to January 27, 2020, a disability rating in excess of 20 percent from January 27, 2020 to April 27, 2021, and a disability rating in excess of 40 percent from April 28, 2021, for the service-connected intervertebral disc syndrome (IVDS) with lumbosacral degenerative arthritis and strain is remanded. REASONS FOR REMAND The Veteran had active service from February 1964 to February 1984. In March 2019, the Veteran testified at a video-conference hearing before the undersigned Veterans Law Judge at the Board of Veterans' Appeals (Board). A transcript of that hearing is of record. The Board remanded this appeal in June 2019 for further evidentiary development. In an April 2020 rating decision, the Regional Office (RO) increased the rating for the Veteran's service-connected IVDS with lumbosacral degenerative arthritis and strain from 10 percent to 20 percent, effective January 27, 2020. In June 2020, the Board again remanded this appeal. A May 2021 rating decision increased the rating for the Veteran's service-connected low back disability from 20 percent to 40 percent disabling, effective April 28, 2021. As these current ratings are less than the maximum available ratings that can be awarded and as the Veteran has not withdrawn his appeal, the entire issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993) (indicating that a Veteran is presumed to be seeking the highest possible rating unless he or she expressly indicates otherwise). Unfortunately, despite the prior two remands, another remand is necessary as the January 2020 and April 2021 VA examiners did not respond to some pertinent questions that were specifically mentioned in the June 2019 and June 2020 Board remands. In addition, the Veteran states that he is in disagreement with the April 2021 VA back examination. See May 2021 Statement from Veteran. Specifically, he feels that he was not accurately examined and that certain diagnostic tests were not conducted. As such, the Board regrettably must remand this case again. The Veteran asserts that he should be assigned higher ratings for his low back disability throughout the appeal period. As previously stated, he was afforded VA examinations for this disability in January 2020 and April 2021. However, both examinations are inadequate and cannot be used to determine accurately the severity of the Veteran's disability. In both the June 2019 and June 2020 Board remands, the examiner was asked to conduct complete range of motion testing and note the point at which there is pain on motion and to indicate how far back in time these results would apply, if possible, or provide an explanation if this could not be done. While range of motion testing results were provided at the examinations, neither examiner stated whether it was possible to indicate how far back in time these results would apply. A response to this question from a VA examiner would greatly assist in determining whether the Veteran should be assigned a higher disability rating prior to January 27, 2020. Also, at the April 2021 examination, the Veteran was not evaluated immediately after repeated use over time or during a flare-up. He reported having severe flare ups of his back, which occur two to three times per week and which last three to four days. He stated that the flare-ups are disabling and that all he can do is sit down when they occur. See April 2021 VA Examination Report. Despite his reports of severe flare-ups, the examination was not conducted during a flare-up. Although asked on the examination questionnaire, the examiner did not provide the estimated range of motion measurements after repeated use over time and during a flare-up, based on a review of all procurable information--to include the Veteran's statements on examination, case-specific evidence (to include medical treatment records and lay evidence), and the examiner's medical expertise. The examiner also did not explain whether it was feasible to provide range of motion estimates after repeated use over time or during a flare-up. Consequently, the Board must remand this case for the RO to schedule the Veteran for another VA examination to address the above noted deficiencies in the April 2021 VA examination report. Accordingly, this matter is REMANDED for the following: Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected IVDS with lumbosacral degenerative arthritis and strain. The claims file, including this remand, should be reviewed by the examiner, and such review should be noted in the examination report. All pathology associated with this service-connected disability should be discussed. In particular, the examiner is asked to: a. Conduct complete range of motion testing and note the point at which there is pain on motion, if any. Active and passive range of motion testing as well as weight-bearing and nonweight-bearing testing must be conducted if applicable. If possible, the examiner should indicate how far back in time these results would apply. If any test is not deemed warranted, such should be identified and explained. b. Note any additional loss of function with repetition due to factors such as pain, weakness, fatigability, and pain on movement. The extent of additional limitation should be expressed in degrees. c. If flare-ups are reported, the examiner must opine as to whether the flare-ups are associated with additional functional loss. If so, he or she should estimate the degree of lost motion during such flare-ups. 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. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for a scheduled VA medical examination may impact determinations made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Trowers, 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.