Citation Nr: 23043372 Decision Date: 08/05/23 Archive Date: 08/05/23 DOCKET NO. 16-36 543 DATE: August 5, 2023 REMANDED Entitlement to an initial rating in excess of 10 percent for lumbar spine condition prior to November 22, 2021, and in excess of 40 percent thereafter, is remanded. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity sciatic nerve is remanded. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity sciatic nerve is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from February 1987 to May 1987, January 1988 to September 1992, October 2001 to October 2002, June 2007 to July 2008, September 2008 to October 2009, and April 2010 to June 2011. The issue was remanded by the Board of Veterans' Appeals (Board) in July 2021, March 2022, and November 2022 for further development. The most recent remand in November 2022 specifically instructed the regional office (RO) to schedule the Veteran for a VA examination and to obtain a retrospective opinion pertaining to the Veteran's claim. In May 2021, the Veteran testified at a virtual conference hearing before the undersigned. A transcript of the hearing is associated with the claims file. Upon review of the record, the Board finds that the claims must be remanded. The Board sincerely regrets the additional delay caused by this remand, particularly as this matter has been the subject of multiple prior remands, but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claims. 1. Entitlement to an initial rating in excess of 10 percent for lumbar spine condition prior to November 22, 2021, and in excess of 40 percent thereafter, is remanded. The Veteran underwent a VA examination in April 2023, in which the examiner noted that the Veteran had no functional loss or impairment. However, he also went on to find that the Veteran's lumbar spine impacted his ability to perform occupational tasks, to include heavy lifting. Furthermore, though the examiner noted that the Veteran did not report flare-ups, a December 2022 treatment note reflects that the Veteran had pain to his lower lumbar spine, with aggravating factors to be functional bending, stooping, and lifting activities, as well as sitting or standing for 30 minutes. See January 2023 Medical Treatment Record - Non-Government Facility, p. 11. These inaccurate and contradictory findings from the April 2023 examiner underscore the need for a new examination that adequately addresses the severity of the Veteran's lumbar spine condition. See Barr, 21?Vet. App. at 311 (holding that once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate). Accordingly, a new examination is required on remand. 2. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity sciatic nerve is remanded. 3. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity sciatic nerve is remanded. The Veteran's bilateral lower extremity radiculopathies are associated with his lumbar spine condition; therefore, in the interest of due process, the Board finds it necessary to remand the ratings assigned for this aspect of the Veteran's service-connected disability due to the potential for development of additional relevant evidence in conjunction with the previously discussed lumbar spine examination. The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims file any relevant outstanding treatment records. 2. Schedule the Veteran for an examination with an appropriate examiner to determine the severity of his lumbar spine condition and associated radiculopathy of the bilateral lower extremities. The examiner should report all signs and symptoms necessary for evaluation of the Veteran's lumbar spine condition under the rating criteria. In particular, the examiner should provide range of motion test results (in degrees) for the Veteran's lumbar spine on active motion, passive motion, weight bearing, and non-weight bearing. The examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the lumbar spine is used repeatedly over a period of time. The examiner should specifically indicate whether the Veteran experiences any limitation of motion that is attributable to pain and at what point during the 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 why that is so. The examiner is asked to describe whether pain significantly limits functional ability during flare-ups and, if so, the examiner must estimate the range of motion during flares. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES' SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report. *The examiner should take into account evidence that lumbar spine impacted the Veteran's ability to perform occupational tasks, to include heavy lifting (i.e. results in functional impairment); as well as evidence that bending, stooping, lifting activities, and sitting or standing for 30 minutes aggravate the Veteran's pain (i.e. causes flares). The examiner should also determine whether the Veteran's current functional loss is consistent with the functional equivalent of ankylosis, meaning whether limitation of motion is fixed in flexion or extension to equal ankylosis. The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be considered. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, 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.