Citation Nr: 22010589 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 18-49 942A DATE: February 24, 2022 REMANDED An initial disability rating in excess of 10 percent for service-connected lumbosacral strain is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from May 2014 until his honorable discharge in October 2017. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision by a Regional Office of the United States Department of Veterans Affairs (VA). In October 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. As an initial matter, the Board notes that on July 11, 2019, VA received VA Form 21-22a, listing Daniel Greenbaum as the Veteran's representative. The Veteran's appeal had already been certified to the Board as of March 28, 2019. Subsequently, in correspondence dated June 28, 2021, Mr. Greenbaum submitted a letter indicating that he was withdrawing his representation of the Veteran. Pursuant to 38 C.F.R. § 20.6(b), "after an appeal to the Board of Veterans' Appeals has been filed, a representative may not withdraw services as representative in the appeal unless good cause is shown on motion." The Board finds the Veteran's representative, Mr. Greenbaum, remains the representative of record as no Motion to Withdraw has been filed in accordance with the requirements of 38 C.F.R. § 20.6(b) (see regulation for all formal requirements of a valid motion to withdraw). 1. An initial disability rating in excess of 10 percent for service-connected lumbosacral strain is remanded. The VA Regional Office granted service connection for lumbosacral strain after obtaining a VA-contracted examination and opinion in October 2017. That examination was also used to rate the Veteran's lumbosacral strain under 38 C.F.R. § 4.71a, Diagnostic Code 5237. VA examinations must include estimated loss of range of motion experienced during flare-ups, if feasible, even if the Veteran is not experiencing one during the examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017). As part of the October 2017 examination, the Veteran reported flare-ups. The examiner did not provide an estimation of additional loss of range of motion. Rather, the examiner stated, Unable to say without mere speculation: Objective determination of whether the veteran is experiencing a flare-up or not can only be determined by someone like PMD / PCP who has prior acquaintance with the veteran's body and has determined a non-flare-up base like for comparison. The is a limitation of the revised DBQ's. I can neither confirm nor refute flare-up status (in all cases, because I only see them once). Therefore, I cannot verify if the objective ROM that I am observing after repetitive use represents ROM during flare-up or not without resorting to speculation. The examiner's explanation is insufficient. Direct observation of functional impairment during a flare-up is not a required to offer an opinion. An examiner's statement that an opinion cannot be provided without resort to speculation is inadequate unless it is clear that it is predicated on a lack of knowledge among the "medical community at large" and not the insufficient knowledge of the specific examiner. In providing an opinion on functional loss, the examiner must attempt to elicit information from a veteran regarding flare-up severity, frequency, duration, or functional loss manifestations. Sharp, 29 Vet. App. 26. "[I]f the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. § 4.2. Therefore, remand is required for a new VA examination. In addition, since the October 2017 examination, the Veteran has testified that his low back disability has worsened. He has also submitted medical evidence supporting his testimony. Therefore, remand is required on this basis as well. Moody v. Wilkie, 30 Vet. App. 329, 341 (2018) ("Generally speaking, VA must provide a new examination when the veteran claims a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition."). Accordingly, the matter is REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. After any additional records are associated with the claims file, obtain a new VA examination from an appropriately qualified clinician as to the Veteran's lumbosacral strain. The entire claims file must be made available to and be reviewed by the examiner, including a copy of this REMAND order. The examiner must report all signs and symptoms necessary to evaluate the Veteran's lumbosacral strain under the appropriate rating criteria. In particular, the examiner must provide range-of-motion test results (in degrees) as to the joint affected and of the opposite, undamaged joint, if possible, on (i) active motion, (ii) passive motion, (ii) weight-bearing, and (iv) non-weight-bearing. If the examiner cannot assess the motion of the opposite, undamaged joint, the examiner must explain why the assessment is not possible. In addition, the examiner is asked to opine whether the Veteran experiences functional impairment of the affected joint due to pain. If the Veteran does experience pain during regular diagnostic testing, the examiner must (i) clearly indicate the exact degree of movement at which pain limits motion in the affected joint and (ii) include the findings of at least three repetitions of range-of-motion testing. If there is no pain and/or no limitation of function, such facts must be noted in the report. In addition, the examiner is asked to give an opinion on whether pain could significantly limit functional ability during (i) flare-ups and (ii) with repeated use over a period of time. If there is functional impairment found during flare-ups or with repeated use over a period of time due to pain, the examiner must provide, if feasible, the degree of additional limitation of motion. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.