Citation Nr: 1749089	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  09-36 906	)	DATE

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


Entitlement to an initial disability rating in excess of 20 percent for a lumbar strain.


Veteran represented by:	Disabled American Veterans


Jack S. Komperda, Associate Counsel


The Veteran served on active duty from February 2003 to May 2003 and from July 2006 to November 2007.  He also had a period of active duty for training (ACDUTRA) from February 2002 to June 2002.

This matter comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.

In a May 2015 rating decision, the RO increased the rating for the back to 20 percent, effective March 30, 2015.  In March 2016, the Board assigned a 20 percent evaluation for the Veteran's lumbar strain for the period prior to March 30, 2015, but denied a rating in excess of 20 percent after that date.  The Veteran subsequently appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court).  In a May 2017 memorandum decision, the Court vacated that portion of the October 2015 Board decision that denied a rating in excess of 20 percent for the entire appeal period and remanded the claim for readjudication. 

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


In its May 2017 memorandum decision, the Court determined that the Board did not sufficiently explain in its March 2016 decision why a March 2015 VA examination report was adequate for it to reach a well-informed decision.  The Court noted that the VA examiner "did not explain why he is unable, given his observations about the nature and severity of the appellant's disorder and his expertise, to form an opinion about the likely degree of functional loss the appellant would experience during a flare-up or after repeated use."  The Court also pointed out that on at least two other occasions, medical treatment providers stated that the Veteran's back disability produces flare-ups.

The Board will remand for a new examination because the March 2015 examiner, and previous examiners, failed to obtain information from the Veteran as to the extent of his functional loss during a flare-up or offer a range-of-motion estimate based on that information.  Further, the March 2015 examiner did not make clear that his inability to provide such an estimate was due to a lack of procurable information.  Sharp v. Shulkin, 29 Vet. App. 26 (2017).  

Since the claims file is being returned it should be updated to include any outstanding VA treatment records.  See 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file all outstanding VA treatment records regarding the Veteran.  If no medical records are available, this should be noted in the Veteran's claims file.

2.  After completion of the foregoing, schedule the Veteran for an appropriate VA examination to reassess the severity of the service-connected lumbar strain.  The claims folder and all pertinent medical records should be made available to the examiner for review.  All necessary diagnostic testing should be performed.  The examiner must describe all impairment of the lumbar spine disability, and make determinations regarding range of motion, including any additional functional impairment.

The examinations must address active and passive motion, weight-bearing and nonweight-bearing information, as required by 38 C.F.R. § 4.59.  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 should specifically ask the Veteran to describe the factors that precipitate a flare-up and the frequency, duration, and severity of any flare-ups.  The examiner should use that information to comment on the functional limitations caused by pain and any other associated symptoms.  Such comments should include whether there was additional limitation of motion following repetitive testing due to pain, weakness, fatigability, etc.  Any determination concerning this functional loss should be expressed in degrees of additional range of motion loss.  A detailed rationale is requested for all opinions provided.  

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, to include whether there are additional tests or information that might be sufficient to estimate such additional functional loss during flares. 

3.  After conducting any other development deemed necessary, readjudicate the Veteran's claim.  If any benefits sought remain denied, issue an appropriate Supplemental Statement of the Case (SSOC) and provide the Veteran and his representative an opportunity to respond.  The case should then be returned to the Board, if otherwise in order, for further appellate review.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).


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