Citation Nr: 22013632 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 16-14 582 DATE: March 10, 2022 REMANDED Entitlement to a rating in excess of 20 percent for degenerative disc disease with degenerative joint disease, thoracolumbar spine (previously rated as paraspinal muscle strain with degenerative disc disease, lumbar spine) is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1975 to February 1978, April 1983 to June 1984, and from June 1984 to March 1995. This matter came before the Board of Veterans Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A March 2016 rating decision granted a higher rating for the issue on appeal (less than the maximum available benefit). Because higher ratings for this disability are assignable during the relevant time period and the Veteran is presumed to seek the maximum available benefit, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). An August 2019 Board remand found that the Veteran had withdrawn her request for a hearing, denied service connection for sleep apnea and entitlement to an increased rating for status post-vaginal hysterectomy, and remanded the issue on appeal for further development. 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease with degenerative joint disease, thoracolumbar spine (previously rated as paraspinal muscle strain with degenerative disc disease, lumbar spine) Pursuant to the August 2019 Board remand directives, the Veteran was afforded a new VA examination in December 2019. However, the Board finds that this examination is not sufficient and that a new examination is needed. The examiner found pain on range of motion testing. While the examiner stated it did not cause functional loss, there was no indication of the point in the range of motion that pain began. Without this missing finding, the Board cannot properly assess whether indeed the is or is not functional impairment caused by the disability. Examinations for joint disabilities generally must include range of motion measurements. See Correia v. McDonald, 28 Vet. App. 158, 169 (2016). In conducting these measurements, the examiner should note when any incoordination, weakened movement, or excess fatigability sets in. Id. The examiner should also note whether pain on motion is present, and, if so, where in the range of motion the pain sets in and whether that pain causes functional loss. Id. As the December 2019 VA examiner did not provide the requested information regarding pain, remand is required to obtain an accurate picture of the Veteran's level of functional impairment. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of her lumbar spine disability. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All findings should be reported in detail. The examiner should identify all lumbar spine pathology and associated neurological impairments found to be present. The examiner should conduct range of motion studies. The joints involved should be tested in both active and passive motion, in both weight-bearing and non-weight-bearing. 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. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups she experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment she experiences during a flare-up of symptoms and/or after repeated use over time. 2. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Bock 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.