Citation Nr: 22016932 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 17-10 996 DATE: March 23, 2022 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 from February 1979 to February 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. This issue has a long and extensive procedural history. Most recently, in June 2021, the Board denied the Appellant's claim for entitlement to an evaluation in excess of 20 percent for a lumbar spine disability. Thereafter, the Appellant appealed to the United States Court of Appeals for Veterans Claims (Court). In February 2022 Joint Motion for Remand (JMR), the parties moved the Court to vacate the June 2021 decision with respect to the issues pertaining to entitlement to an evaluation in excess of 20 percent for a lumbar spine disability. The denial of entitlement to an evaluation of in excess of 10 percent for left lower extremity radiculopathy and an evaluation in excess of 10 percent for right lower extremity radiculopathy were not disturbed. The Board notes that in a January 2022 decision, the Board granted total disability due to individual unemployability on an extraschedular basis effective February 9, 2021. Entitlement to a rating in excess of 20 percent for a lumbar spine disability is remanded. The Veteran contends that the 2020 VA back examination was inadequate because it did not adequately consider the 2016 VA back examination, contained contradictory findings as to guarding, and did not adequately consider potentially favorable evidence regarding the Veteran's use of assistive devices for his back. The Board finds that the 2020 VA back examination is inadequate due to its contradictory findings. Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that once VA undertakes an examination, it must provide an adequate one). Thus, remand is required to obtain a new examination. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar spine disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner is also directed to provide a retrospective opinion regarding the severity of the Veteran's lumbar spine disability during the entire appeal period based on the Veteran's testimony, the medical evidence of record, and the 2016 and 2020 VA examinations. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.D. Taylor, 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.