Citation Nr: 18144370 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 10-08 922 DATE: REMANDED Entitlement to a rating in excess of 10 percent for a lumbar spine disability for the period prior to July 3, 2012, is remanded. Entitlement to a rating in excess of 20 percent for a lumbar spine disability for the period from July 3, 2012, through March 11, 2014, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1974 to October 1977. This matter comes before the Board on appeal from a January 2009 Regional Office (RO) rating decision. In May 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The issues on appeal were previously denied in a May 2017 Board decision and were subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). In a May 2018 Order, the Court granted the parties’ April 2018 Amended Joint Motion for Partial Remand (Joint Motion), which vacated the issues on appeal and remanded them to the Board for additional development and readjudication. Entitlement to a rating in excess of 10 percent for a lumbar spine disability for the period prior to July 3, 2012, is remanded. Entitlement to a rating in excess of 20 percent for a lumbar spine disability for the period from July 3, 2012, through March 11, 2014, is remanded. The April 2018 Joint Motion states “that remand is warranted to obtain a VA opinion in which the examiner opines, to the degree medically possible, as to functional loss Appellant experienced due to flare-ups and repetitive use over time for the rating period prior to March 11, 2014.” The Joint Motion notes that there were deficiencies in the January 2010 and July 2012 VA examination reports because they did not “provide an opinion regarding functional loss due to flare-ups or repeated use over time in terms of range of motion.” On remand, such an opinion must be obtained. The Court has issued an opinion addressing whether a VA examiner is permitted to decline to offer an estimate as to additional functional loss during flare-ups if the veteran is not undergoing a flare-up at the time of the examination. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that the Board may accept a VA examiner’s assertion that he or she cannot offer such an opinion without resort to speculation only after it determines that the examiner’s conclusion is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. It must be clear that such an opinion is not procurable based on a lack of knowledge among the “medical community at large” and not merely on a lack of expertise, insufficient information, or unprocured testing on the part of the specific examiner. In the context of the case at hand, the Board observes that the principle outlined in Sharp is also applicable when attempting to obtain a retrospective opinion. The Joint Motion also directed the Board to provide a medical justification for its finding that the Veteran’s left limping gait was due to left lower extremity sciatica rather than due to muscle spasms in the low back. This instruction pertains to the 20 percent rating criterion of “muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.” The Joint Motion specifically notes that the January 2010 VA examination report notes no muscle spasms and a normal gait, implicitly suggesting that there may be a causal relationship between the presence of muscle spasms and the presence of an abnormal gait. On remand, this specific question must be addressed by a VA examiner. The Joint Motion also directed the Board to address the August 2008 VA examiner’s finding that the Veteran had a diminished lumbar curve. On remand, the VA examiner must address whether the Veteran had muscle spasms or guarding due to his low back disability severe enough to result in a diminished lumbar curve. The matters are REMANDED for the following action: 1. Obtain all relevant VA and private treatment records not currently associated with the claims file, to include any VA medical records that were created since the Veteran’s records were last obtained in June 2017. 2. Following completion of the above, obtain a retrospective medical opinion from an appropriate clinician regarding the severity of the Veteran’s service-connected low back disability. The relevant documents in the record should be made available to the examiner. In particular, the examiner should review the August 2008, January 2010, and July 2012 VA examination reports of record together with all other evidence pertaining to the severity of the Veteran’s low back disability for the period from November 16, 2006, through March 11, 2014. The opinion should address the following: (a) The examiner should render, if possible to do so without resorting to mere speculation, a retrospective opinion that estimates the additional functional impairment during flare-ups (in terms of the degree of additional range of motion loss) at each time the low back disability was previously examined with documented range of motion testing for VA rating purposes (in particular, at the times of the August 2008, January 2010, and July 2012 VA examinations). The opinion should be based on relevant information elicited from the Veteran, review of the file, and the examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares. If an opinion with such estimations cannot be provided, 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. (b) The examiner should render, if possible to do so without resorting to mere speculation, a retrospective opinion that estimates the additional functional impairment with repeated use over time (i.e., in excess of three repetitions, to include over the course of a day) (in terms of the degree of additional range of motion lost) at each time the low back was examined with range of motion testing for rating purposes (in particular, at the times of the August 2008, January 2010, and July 2012 VA examinations). The opinion should be based on relevant information elicited from the Veteran, review of the file, and the examination results regarding the frequency, duration, characteristics, severity, and functional loss. If an opinion with such estimations cannot be provided, 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. (c) The examiner should opine as to whether the record indicates that the Veteran’s left limping gait, as found on examination in August 2008, was due at least in part to muscle spasms in the low back. In formulating this opinion, the examiner should expressly discuss the January 2010 VA examination report’s notation that the Veteran had no muscle spasms and a normal gait. (d) The examiner should also opine as to whether the record, including the August 2008 VA examination report, reflects that the Veteran had muscle spasms or guarding severe enough to result in a diminished lumbar curve. A rationale for all opinions and a discussion of the facts and medical principles involved should be provided. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Elizabeth Jalley, Counsel