Citation Nr: 18154137
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 16-59 097
DATE:	November 29, 2018
Entitlement to a rating in excess of 10 percent for chronic lumbar strain is remanded.
The Veteran served in the United States Marine Corps from May 1977 to May 1981 and from December 1981 to April 1986. 
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.
Entitlement to a rating in excess of 10 percent for chronic lumbar strain is remanded.
Regrettably, a remand is necessary for further evidentiary development of the Veteran's appeal.  The Veteran's last VA examination for her back was in October 2016.  The Board has reviewed that examination report and notes that it is not complete, as it does not appear that any passive, weight-bearing and nonweight-bearing range of motion testing was conducted at that time.  Consequently, the Board finds that it must remand the claim in order for another VA examination to be accomplished.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).
The Board notes that two recent precedential decisions require the Veteran's claim to be remanded.  In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court of Appeals for Veterans Claims (the Court) held that in order for an examination to be adequate, it must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint.  A review of the Veteran's last VA examination indicates that a new examination is warranted in light of Correia.
In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court also noted that for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "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."  Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves."  Sharp, 29 Vet. App. at 34.  The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "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.  Id. at 10.

The matter is REMANDED for the following action:

Schedule the Veteran for a VA examination so as to determine the current severity of her back disability.  The claims file must be made available to and be reviewed by the examiner.  All tests deemed necessary should be conducted and the results reported in detail.  Full range of motion testing must be performed.
The back must be tested in both active and passive motion, in weight-bearing and nonweight-bearing.  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 also request the Veteran identify extent of her functional loss during a flare-up and, if possible, offer range of motion estimates based on that information.  If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information.
The examiner is also asked to determine the impact, if any, the Veteran's back disability has on her ability to secure or follow a substantially gainful employment.
Michael J. Skaltsounis
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. R. Montalvo, Associate Counsel

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