Citation Nr: 22018256 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-55 924 DATE: March 28, 2022 REMANDED Entitlement to an initial disability rating in excess of 10 percent for the Veteran's anterior compression fracture at L4 with degenerative disc disease at L2-L3 ("lumbar spine disability") is remanded. INTRODUCTION The Veteran served on active duty in the United States Army from November 2014 to February 2015. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in May 2020, it was remanded for additional development. This case has since been returned for appellate review. REASONS FOR REMAND While additional delay is unfortunate, the Board finds further development is required before the Veteran's claim is decided. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Additionally, when there is not substantial compliance with a Board remand request, the Board errs as a matter of law when it does not ensure compliance. Stegall v. West, 11 Vet. App. 26 268 (1998). To be considered adequate, a VA musculoskeletal examination must include an assessment of the veteran's flare-ups, as well as range of motion measurements in weight bearing, non-weight bearing, and in passive motion. See Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Correia v. McDonald, 28 Vet. App. 158 (2016). Following the May 2020 remand, the Veteran underwent a VA back examination in July 2020; however, like the prior examination, the VA examiner failed to provide all of these critical evaluative criteria. Specifically, the July 2020 VA examiner failed to provide both non-weight bearing and weight bearing range of motion assessments, as well as in passive motion. As such, a remand is again required. Accordingly, this matter is REMANDED for the following action: Afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected lumbar spine disability. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight bearing and non-weight bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flare-ups in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes the required testing is not necessary, he or she should be directed to clearly explain why that is so. Also, obtain retrospective opinion from the VA examiner, regarding the severity of the Veteran's service-connected lumbar spine disability throughout the pendency of the appeal. In particular, the examiner is asked to state the following: a) whether the Veteran's flare-ups have resulted in functional loss of the lumbar spine at any time since February 2015, and if so, the examiner is asked to express that loss in terms of degrees of motion lost due to such factors as pain, weakness, fatigability, incoordination; b) whether the Veteran has experienced functional loss of the spine in weight bearing, non-weight bearing, or passive motion at any time since February 2015, and if so, the examiner is asked to express that loss in terms of degrees of motion lost due to such factors as pain, weakness, fatigability, incoordination; and c) whether the Veteran has experienced functional ankylosis of the lumbar spine at any time since February 2015. In this respect, the examiner is advised that for VA compensation purposes, the requirement of ankylosis can be met with evidence of the functional equivalent of ankylosis (i.e. functional immobility of the joint) during a flare-up. The examiner is also advised that for this inquiry, unfavorable ankylosis of the spine is defined as a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. If the examiner determines such a retrospective opinion is not possible, or would be speculative, the examiner must state whether this 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). T. REYNOLDS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nestander, Jessica S. 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.