Citation Nr: 22018481 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 15-08 781A DATE: March 29, 2022 REMANDED Entitlement to a compensable rating for degenerative disc disease of the lumbar spine, prior to August 19, 2013, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1980 to December 1980 and from March 2003 to May 2004. This case comes before the Board of Veterans' Appeals (Board) on an appeal from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office. This claim was previously remanded by the Board in June 2018 and January 2020. In March 2021, the Board issued a decision denying a compensable rating prior to August 19, 2013. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (CAVC). In January 2022, the CAVC remanded the Veteran's case to the Board for further action consistent with the terms of a joint motion for remand (JMR). The JMR specified that the Board failed to consider the adequacy of the February 2011 VA examination report in light of Sharp v. Shulkin, 29 Vet. App. 26 (2017). 1. Entitlement to a compensable rating for degenerative disc disease of the lumbar spine, prior to August 19, 2013, is remanded. The Veteran and his representative claim that he is entitled to an increased rating for his service-connected lumbar spine disability prior to August 19, 2013. While the Board sincerely regrets further delay in this matter, additional development is required before the Veteran's claim may be adjudicated on the merits. Additional medical opinions are necessary if the evidence of record is not sufficient to decide the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). This may include a retrospective medical opinion. See Chotta v. Peake, 22 Vet. App. 80 (2008). To be considered adequate for purposes of adjudication, VA examinations of the joints must particularly consider whether the disability is manifested by weakened movement, excess fatigability, incoordination, or pain, and whether such symptoms exacerbate the degree of loss of functional impairment. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80 (1997) (limiting highest additional rating based on DeLuca factors to schedular maximum), Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (clarifying that pain may be evidence of functional loss but is not functional loss in and of itself), Correia v. McDonald, 28 Vet. App. 158 (requiring that joint pain be tested under varying conditions to better simulate functional demands), and Sharp, 29 Vet. App. at 26 (requiring evaluation of pain during periodic flare-ups). The January 2022 JMR noted that the Board failed to consider the adequacy of the February 2011 VA examination report, as the examiner noted that Veteran had severe flare-ups and "functional impairment during flare-ups," but did not estimate the functional impact in terms of a limitation on range of motion. see Sharp, 29 Vet. App. at 34; DeLuca, 8 Vet. App. at 202. The CAVC added that it has previously held, "for an examination to comply with § 4.40, the examiner must 'express an opinion on whether pain could significantly limit functional ability' and the examiner's determination in that regard '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.'" Sharp, 29 Vet. App. at 32. As noted, the February 2011 VA examiner reported the Veteran's statements that he experienced additional functional loss during periodic flare-ups, however he did not opine on the degree of additional functional loss the flare-up represented. Therefore, the Board finds that a remand is necessary so that a VA examiner can properly assess the impact of the Veteran's flare-ups prior to August 19, 2013, and specifically provide a retrospective opinion for the period on appeal, including during the February 2011 VA examination. The Board adds that it cannot accept an examiner's statement that an opinion cannot be provided based on speculation if it is not clear that the basis for the refusal is a lack of knowledge among the medical community at large, as opposed to the insufficient knowledge of the specific examiner. Sharp, 29 Vet. App. at 36. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate VA examiner with the appropriate expertise. His claims file, including a copy of this remand, shall be made available to the examiner for review in conjunction with the examination. The examiner shall retrospectively evaluate the degree of additional functional loss the Veteran experienced with repetitive use and during flare-ups of his lumbar spine disability prior to August 2013, and specifically estimate the impact of the disability during the February 2011 VA examination in terms of the degree of additional range of motion loss due to pain on use or during flare-ups at the time of that examination. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner is advised that the Veteran is considered competent to be able to report his symptoms, and that his reports must be considered in formulating the requested opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. R. Montalvo, 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.