Citation Nr: 22018585 Decision Date: 03/29/22 Archive Date: 03/29/22 DOCKET NO. 16-59 220 DATE: March 29, 2022 REMANDED Entitlement to a rating in excess of 10 percent prior to September 30, 2021, and in excess of 20 percent thereafter, for degenerative arthritis of the lumbar spine is remanded. REASONS FOR REMAND The Veteran had active service from November 1974 to March 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2020, the Veteran appeared before the undersigned Veterans Law Judge (VLJ) in a virtual hearing; a transcript of the hearing is of record. Entitlement to a rating in excess of 10 percent prior to September 30, 2021, and in excess of 20 percent thereafter, for degenerative arthritis of the lumbar spine is remanded. When this matter was before the Board in April and August 2021, it was remanded on both occasions to obtain an examination that complied with the Court's holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App.158 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). In pertinent part, at the time of the August 2021 remand, the examiner was specifically instructed to indicate whether the Veteran had pain on range of motion testing of the spine, and if so, to indicate the degree of range of motion at which such pain begins. Following the August 2021 remand, the Veteran was afforded a VA examination in September 2021. The examination is probative to the extent that the examiner estimated the Veteran's range of motional and functional loss on flare-up and with repeated use. However, the examiner indicated that the Veteran had limited range of motion of the spine, with pain exhibited on forward flexion, extension, and right and left lateral flexion. Additionally, the examiner indicated that the Veteran experienced pain on both active and passive motion of the spine that caused functional loss. Unfortunately, the examiner failed to note the point (expressed in degrees) at which painful motion begins. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. To that extent, painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. While the Veteran has been afforded several VA examinations during the period on appeal, no examination of record has specifically addressed the point at which the Veteran begins experiencing painful motion of the spine, despite specific instructions to provide such findings. Without such findings, the Board is unable to accurately determine the extent to which the Veteran's painful, limited motion causes functional loss. As such, remand is warranted to obtain a new VA examination and opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the severity of his service-connected lumbar spine disability. The record, including a copy of this remand, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner's specific attention is called to the following: a.) The examiner MUST test the Veteran's range of motion on BOTH active and passive motion, on weight-bearing AND non-weight-bearing, if possible. b.) If there is any evidence of pain on motion, the examiner must indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination results in any loss of range of motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, 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.