Citation Nr: 22017306 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-28 821 DATE: March 24, 2022 REMANDED Entitlement to a higher initial rating of 20 percent for service-connected lumbar spine posterior facet degenerative changes prior to February 13, 2020 is remanded. Entitlement to a rating in excess of 20 percent for service-connected lumbar spine posterior facet degenerative changes from February 13, 2020 is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1970 to February 1973 and from November 1974 to November 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in June 2019. A transcript of the hearing is associated with the electric claims file. In a February 2021 decision, the Board denied the Veteran's claim for an increased rating for his service-connected lumbar spine posterior facet degenerative changes. The Veteran then appealed the Board's unfavorable determination to the United States Court of Appeals for Veterans Claims (CAVC). Pursuant to a Joint Motion for Partial Remand, the CAVC issued a November 2021 Order to vacate the February 2021 denial and remanded the underlying claims to the Board for readjudication. See November 2021, Order granting Joint Motion for Partial Remand. The parties' agreements in the Court-endorsed JMPR will be discussed below. The Veteran's appealed issue has been returned to the Board. 1. Entitlement to a higher initial rating of 20 percent for service-connected lumbar spine posterior facet degenerative changes prior to February 13, 2020 is remanded. 2. Entitlement to a rating in excess of 20 percent for service-connected lumbar spine posterior facet degenerative changes from February 13, 2020 is remanded. The duty to ensure compliance with the Court's November 2021 Order extends to the terms of the agreement struck by the parties that forms the basis of the joint motion for remand. Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006). In the JMPR, the parties agreed that the VA did not satisfy its duty to assist because it obtained and relied upon inadequate medical opinions. The March 2013 VA examination, July 2019 private examination, and February 2020 VA examination are inadequate because they did not comply with Mitchell v. Shinseki, 25 Vet. App. 32 (2011) and Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). The March 2013 examiner and July 2019 examiner failed to provide an estimated functional loss in terms of range of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The February 2020 examiner did not describe the limitation of motion in terms of range of motion and did not provide a reason for why the Veteran's lay statements could not assist him in determining this information. Here, pursuant to the Court's Order and consistent with the terms of the JMPR, the Board remands the Veteran's claim for a rating in excess of 20 percent for lumbar spine posterior facet degenerative changes for a new medical examination that complies with Mitchell v. Shinseki, 25 Vet. App. 32 (2011) and Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to evaluate the service-connected lumbar spine disability. The Veteran's claims folder must be reviewed by the examiner. (a) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins (e.g., 0 to 130 degrees with pain at 115 degrees). (b) Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the back cannot be tested on "weight-bearing," then the examiner must specifically indicate that such testing cannot be done. (c) The examiner should also express an opinion concerning whether there would be additional functional impairment on pain, repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)) if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran's functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so, especially in light of the Veteran's statements. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alexia E. Palacios-Peters, 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.