Citation Nr: 22014754 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 16-00 199 DATE: March 14, 2022 REMANDED Entitlement to an increased disability rating in excess of 20 percent for lumbar spondylosis is remanded. REASONS FOR REMAND The Veteran had active duty service in the United States Army from July 2000 to October 2000. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision. In a September 2018 decision, the Board remanded the Veteran's increased rating claim for his lumbar spine disability to the Agency of Original Jurisdiction (AOJ) for additional development and adjudication. The Board later denied the claim in a November 2020 decision. The Veteran appealed that determination to the United States Court of Appeals for Veterans Claims (Court). In a June 2021 Order, the Court vacated that portion of the Board's decision and remanded the matter to the Board for development consistent with the parties' Joint Motion for Partial Remand (Joint Motion). 1. Entitlement to an increased disability rating in excess of 20 percent for lumbar spondylosis is remanded. The Veteran's increased rating claim for his lumbar spine disability must be remanded to obtain an adequate VA examination that reports all signs and symptoms necessary for evaluating the disability under the rating criteria in accordance with the Board's prior remand. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). In response to the September 2018 Board remand, the Veteran was provided with a VA examination to evaluate his lumbar spine disability in August 2019. However, the VA examiner did not test for the presence of pain in passive motion or on nonweight bearing. 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 23 Vet. App. 158, 168-69 (2016). The examiner also stated that the Veteran was not being examined immediately after repetitive use over time or during a flare up, and the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss under these circumstances before opining that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time or with flare ups. However, these opinions appear to be inconsistent with the information provided by the examiner under the medical history section of the report indicating that the Veteran described experiencing a reduction in range of motion of 95 percent during flare ups and 50 percent with repeated use over time. Accordingly, the examination report obtained on remand should clarify the extent of functional impairment experienced by the Veteran during flare ups and with repeated use over a period of time. The matters are REMANDED for the following action: 1. The AOJ should request that the Veteran provide the names and addresses of any health care providers who have provided treatment for his lumbar spine disability. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding VA medical records, to include records dated since February 2013. After completing the preceding development, the Veteran should be afforded a VA examination to address the current severity and manifestations of his lumbar spondylosis. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the lumbar spondylosis under the rating criteria. In particular, the examiner should provide the range of motion in degrees and test the range of motion in (1) active motion, (2) passive motion, (3) weight-bearing, and (4) nonweight-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 this is so. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability (including limitation of motion) due to these factors. In addition, based on examination results and the Veteran's documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. In this regard, even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to the Veteran's flares or ask her to describe the additional functional loss, if any, he suffers during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record-including the Veteran's lay information-or explain why he or she could not do so. The examiner must also indicate whether a diagnosis of intervertebral disc syndrome is warranted, and if not, should provide a fully reasoned explanation as to why such a diagnosis is not warranted. The examiner must indicate whether the Veteran has incapacitating episodes due to intervertebral disc syndrome. For VA rating purposes, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. If the Veteran experiences incapacitating episodes, the examiner must indicate the approximate number of weeks in the last year the Veteran has experienced incapacitating episodes. The examiner must also indicate whether the Veteran has any neurological disability as a result of his lumbar spondylosis. The examiner should also state whether there are any scars related to the Veteran's lumbar spine disability. If so, he or she should provide the findings necessary under the rating criteria for scars. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.C. Spragins, 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.