Citation Nr: 21042293 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 15-45 675 DATE: July 12, 2021 REMANDED Entitlement to a rating in excess of 20 percent for a lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Navy from February 1978 to January 1982, from April 1982 to June 1995, and from July 1995 to December 2000. This matter was previously denied by the Board of Veterans' Appeals (Board) in March 2019 and the Veteran timely appealed to the Court of Appeals for Veterans Claims (the Court). In an April 2020 Joint Motion for Partial Remand, the Court remanded the matter for further adjudication after it was determined that the Board provided inadequate reasons and bases for its denial. The Board remanded the matter in October 2020 to obtain additional medical records and a new VA examination. Although the Board regrets further delay, it finds that there was not substantial compliance with the remand, and an additional remand is required. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a rating in excess of 20 percent for a lumbar spine disability is remanded. The Veteran's claim for increased rating for lumbar spine disability requires further development. The April 2021 VA examiner stated that the Veteran was not examined immediately after repeated use over time, but that the Veteran's functional ability with repeated use over time was not significantly limited by pain, fatigability, weakness, lack of endurance, or coordination. However, on a separate document submitted on the same day, when the examiner was asked to provide supporting rationale for this statement, the examiner explained "there is no loss of [range of motion] with repeated use during the clinic exam." The examiner's statement is internally inconsistent with the earlier statement that they did not examine the Veteran after repeated use over time, and examining a Veteran after three repetitions during an examination is a separate and distinct question from whether the Veteran's functioning is significantly limited after repeated use over time. As such, a remand is required in order to determine whether the Veteran has additional functional limitations after repeated use over time. Lastly, the Veteran's representative alleged in a May 2021 correspondence that the VA examiner did not elicit any information from the Veteran. While the Board is not determining whether or not that is the case, when examining the Veteran, the examiner should be sure to inquire as to the Veteran's medical history and assertions, including a discussion of this in the VA examination report. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for a VA examination to assess the severity of the service-connected lumbar disability. The record, including a copy of this remand, should be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of their report) and all clinical findings should be reported in detail. 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 non-weight-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, they should clearly explain why that is so. The rationale for all opinions expressed should be provided. In particular, the examiner is directed to estimate the degree of functional loss with repeated use over time and during flare-ups, as represented in degrees of motion of the lumbar spine. The examiner should 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Veltri, Associate Counsel