Citation Nr: 22014883 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 14-29 890 DATE: March 15, 2022 REMANDED Entitlement to initial ratings in excess of 10 percent disabling prior to September 16, 2019, and in excess of 20 percent disabling thereafter for service-connected lumbar strain are remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from June 1992 to May 2000. In March 2018, the Board remanded the claims on appeal for further development and adjudication. In February 2021, the Board found that there was substantial compliance with its March 2018 remand directives. A remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). In February 2021, the Board, in pertinent part, denied the Veteran's claims for higher initial ratings for his service-connected lumbar strain, and the Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (CAVC). In a December 2021 Joint Motion for Partial Remand (JMPR), CAVC set aside the Board's denial and remanded the claims back to the Board for further development and adjudication. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to initial ratings in excess of 10 percent disabling prior to September 16, 2019, and in excess of 20 percent disabling thereafter for service-connected lumbar strain are remanded. The Veteran contends that his lumbar strain is worse than is reflected by his currently assigned ratings. Relevant to the Veteran's claims for higher ratings for his service-connected lumbar strain, the Court has held that, where the record does not adequately reveal the current state of a claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the last examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995). The Board finds that the Veteran's claims for higher ratings for his service-connected lumbar strain must be remanded in order to afford him a contemporaneous VA examination in order to assess the current nature and severity of his service-connected disability. In this regard, the record reflects that the Veteran was most recently afforded a VA examination for his condition in September 2019. Since that time, the Veteran has noted an increase in the severity of his symptoms and alleges that higher ratings are warranted. Considering the allegations of worsening symptoms and the degenerative nature of the Veteran's disability, as well as the amount of time which has passed since the Veteran's prior examination, the Board finds that a remand is required in order to afford the Veteran a contemporaneous VA examination so as to determine his current level of impairment with regard to his service-connected lumbar strain. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Furthermore. regarding the Veteran's prior examinations for his lumbar disability, the Court in its September 2021 JMPR found that the Board failed to ensure that the duty to assist had been met as the prior examinations in June 2006 and 2010 and September 2019, were found inadequate. The Court found and the Board agrees that the prior examinations are not in compliance with the Court's ruling in Correia v. McDonald, 28 Vet. App. 158 (2016). While the June 2006 and June 2010 examiners did answer some Correia questions, they failed to indicate that testing was performed on passive range of motion and non-weight bearing. Furthermore, the September 2019 examiner noted that he was unable to test the Veteran's active range of motion as the Veteran could not stand on his own. However, the examiner also indicated that the Veteran's passive range of motion was the "same as active." Therefore, the Court and the Board find that it is unclear as to whether the examiner performed passive range of motion testing. As it is unclear if the prior examinations are in compliance with Correia, on remand the new examination should clearly include Correia compliant testing along with thorough explanations of the examiner's findings. The new examination should include specific findings regarding the Veteran's range of motion in active motion, passive motion, weightbearing, and non-weightbearing. Additionally, the Board notes that the Court has also held that VA examiners must offer flare and functional impairment opinions based on estimates derived from information procured from relevant sources, including a Veteran's lay statements. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Furthermore, the Court explained that case law and VA guidelines do not require direct observation of functional impairment after repetitive use or during a flare-up as a prerequisite to offering a DeLuca opinion. DeLuca v. Brown, 8 Vet. App. 202 (1995). Indeed, it is not expected that such observation will usually occur; therefore, VA examiners should offer opinions based on estimates derived from information procured from all relevant sources, including the lay statements of veterans. If a non-speculative opinion still cannot be offered, the VA examiner must explain the basis for this conclusion. It must be apparent that the inability to provide an opinion without resorting to speculation reflects the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. Furthermore, in Sharp, the Court noted that for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves." Sharp, 29 Vet. App. at 34. The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 10. In this case, the Veteran has alleged that he experiences flares of his lumbar disability, and that he has functional impairment from such. However, while the VA examiners acknowledged that the Veteran had functional impairment in general, they failed to ascertain adequate information, such as the frequency, duration, characteristics or severity of the flares and functional impairment by alternative means and therefore the detailed findings contemplated by the Sharp case have not been included. Therefore, a remand for a new VA examination to adequately address the Correia and Sharp standards is required. 38 C.F.R. § 4.2. Due to the amount of time which will pass on remand, updated treatment records should be obtained and associated with the record. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. The Veteran should be afforded a VA examination to determine the current nature and severity of his service-connected lumbar strain. The claims file, to include a copy of this remand, must be made available and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. In addition to all findings identified on the appropriate examination form, the examiner should determine the effective range of motion in the Veteran's lumbar spine and present the results of range of motion tests in written reports which comply with 38 C.F.R. § 4.59 by recording separate sets of the range of motion test results for both active and passive motion, and in weight bearing and non-weight-bearing. The examiner's report should describe objective evidence of painful motion, if any, during each test. IT IS NOT SUFFICIENT MERELY TO INDICATE WHETHER OR NOT PAIN WAS PRESENT DURING ONE OF THE REQUIRED RANGE OF MOTION TESTS. If possible, the VA examiner should also provide retrospective medical opinions addressing the ranges of motion, additional functional impairment, and severity of the Veteran's service-connected lumbar strain since 2003. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare or repetitive testing cannot be performed, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. Again, if possible, the VA examiner should provide a retrospective medical opinion addressing the functional impairment of the lumbar spine since 2003. If any of these findings are not possible, please provide an explanation. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements. The examiner should provide a rationale for any opinion expressed and reconcile that opinion with all pertinent evidence of record, including all relevant VA medical records and any lay evidence suggesting that the Veteran's service-connected lumbar spine problems are worse than shown on some prior examinations. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Unger, 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.