Citation Nr: 23055152 Decision Date: 10/05/23 Archive Date: 10/05/23 DOCKET NO. 20-02 601 DATE: October 5, 2023 REMANDED Entitlement to a disability rating in excess of 20 percent for service-connected degenerative disc disease of thoracolumbar spine is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1985 to November 1989, and December 1997 to May 2000. This matter comes before the Board of Veterans' Appeals (Board) from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran opted for a hearing before the Board in his January 2020 VA Form 9 (Appeal to the Board of Veterans' Appeals). The record indicates that the Veteran waived this hearing request in a September 2022 correspondence from his representative. Thus, the Veteran's request for a Board hearing is considered withdrawn. 38 C.F.R. § 20.704(e). While the Board regrets further delay, the Veteran's claim must be remanded for additional development. The Veteran is in receipt of a 20 percent disability rating for his thoracolumbar spine disability under 38 C.F.R. § 4.71a, Diagnostic Code 5243, and asserts that the severity of his disability warrants a higher rating. Under Diagnostic Code 5243, for intervertebral disc syndrome (IVDS), a higher 40 percent rating is warranted for incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A higher, 40 percent rating is also warranted when, upon physical examination, forward flexion of the thoracolumbar spine 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Upon VA examination in August 2018, IVDS was not diagnosed, and range of motion testing indicated forward flexion of the thoracolumbar spine to 35 degrees with no ankylosis. The examiner, however, provided estimations of additional loss of motion in the left hip during a flare or after repetitive use over time, despite him reporting flare ups of worsening pain resulting in the Veteran being bedridden. In Sharp v. Shulkin, the United States Court of Appeals for Veterans Claims (Court) held that, when conducting evaluations for musculoskeletal disabilities, VA examiners are obligated to inquire whether there are periods of flare ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment." Sharp, at 34. The Court further explained that, in the event an examination is not conducted during a flare up, the "critical question" in assessing the adequacy of the examination was "whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares." Id. at 34. Therefore, the Board finds that, in light of Sharp, a retrospective opinion regarding the Veteran's thoracolumbar spine disability is necessary. As it has also been five years since his last VA examination, an entirely new physical examination is necessary to determine the current nature and severity of the Veteran's disability. Additionally, and consistent with the holding of the United States Court of Appeals for Veteran's Claims in Chavis v. McDonough, 34 Vet. App. 1, 20 (2021), an opinion should be provided as to whether the severity of the Veteran's back disability during a flare up or after repetitive use over time has amounted, at any point during the appeal, to the functional equivalent of ankylosis for the purposes of a higher disability rating. The matter is therefore REMANDED for the following actions: 1. Ask the Veteran to identify any outstanding treatment records relevant to his remanded claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of their unavailability. 2. After records development is completed, schedule the Veteran for a VA spine examination to determine the symptoms, level of severity, and functional impairment associated with his service-connected thoracolumbar spine disability. 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 and after repetitive use over time. If it is not possible to specifically estimate range of motion during flare-up and after repetitive use over time without speculation, the examiner is asked to opine as to whether during these conditions forward flexion of the lumbar spine would be limited to 30 degrees or less; if motion would be greater than this, that should be stated. The examiner should also offer a retrospective opinion as to whether, at the time of his initial VA examination during the appeal in August 2018, the Veteran's thoracolumbar spine exhibited additional functional loss during a flare up and repetitive use over time. Again, if it is not possible to specifically estimate range of motion during flare-up and after repetitive use over time without speculation, the examiner is asked to opine as to whether during these conditions forward flexion of the lumbar spine would be limited to 30 degrees or less; if motion would be greater than this, that should be stated. The examiner should also opine as to whether, during a flare up or after repetitive use over time, the Veteran's back disability manifest unfavorable or favorable ankylosis of the thoracolumbar spine, as the functional equivalent of ankylosis during such instances can satisfy the criteria for a rating based on ankylosis. See Chavis v. McDonough, 34 Vet. App. 1, 20 (2021). If this cannot be accomplished 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) and explain why that is the case. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.