Citation Nr: 18144905 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 06-08 323 DATE: October 25, 2018 REMANDED Entitlement to a disability rating in excess of 20 percent for postoperative degenerative arthritis of the lumbar spine (back disability) prior to April 12, 2017, and in excess of 40 percent thereafter is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Airforce from October 1974 to August 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The procedural history of this case has been summarized in previous Board decisions and remands. Most recently, in March 2015, the Board granted a 20 percent disability rating for the back disability prior to February 7, 2011, but denied a disability rating in excess of 20 percent from February 7, 2011. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In August 2016, the Court issued a Memorandum Decision in which it vacated and remanded the Board’s March 2015 decision. In March 2017, the Board remanded the appeal. In an August 2018 rating decision, the RO awarded a 40 percent rating effective from April 12, 2017. The RO also assigned a 20 percent rating for left lower extremity radiculopathy of the sciatic nerve effective April 12, 2017; and a 20 percent rating for left lower extremity radiculopathy of the femoral nerve effective April 12, 2017. 1. Entitlement to a rating in excess of 20 percent for postoperative degenerative arthritis of the lumbar spine prior to April 12, 2017 (excluding those periods which the Veteran was in receipt of a temporary total disability rating) and in excess of 40 percent thereafter is remanded. The Veteran seeks a rating in excess of 20 percent for his low back disability prior to April 12, 2017, and a rating in excess of 40 percent thereafter. The appeal period begins on October 19, 2003, one year prior to VA’s receipt of the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran underwent VA examinations for his low back disability in December 2005, June 2006, August 2009, and February 2011. In its August 2016 Memorandum Decision, the Court found all the examinations inadequate. The December 2005 and August 2009 VA examinations were found inadequate because the examiners did not discuss whether any functional loss was attributable due to pain during flare-ups of the Veteran’s back disability or provide any insight as to the functional limitations resulting from flare-ups. The June 2006, August 2009, and February 2011 VA examinations were found inadequate because they did not address at what point the Veteran’s pain began during range of motion testing. There is nothing in the record to indicate that the discussion of functional loss contained in the April 2017 VA examination report is representative of the Veteran’s functional loss throughout the entire appeal period. The record shows that the Veteran has undergone multiple back surgeries which indicates his condition has not been static. The record does not contain an adequate discussion of functional loss as required by DeLuca for the period prior to April 12, 2017. On remand, the examiner should provide an addendum opinion that retrospectively addresses the Veteran’s level of functional loss per DeLuca, for the period October 19, 2003 to April 12, 2017. 38 C.F.R. § 4.2; Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (holding that the duty to assist may include obtaining a retrospective medical opinion to fill in gaps in the medical evidence of record); see generally Sharp v. Shulkin, 29 Vet. App. 26 (2017) (an opinion should be formulated using all procurable evidence, to include the Veteran’s lay statements). The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2016 to the present. 2. Return the file to the April 2017 VA examiner. If that examiner is unavailable, the opinion should be obtained by a suitable replacement. The examiner must review the entire claims file, to include a copy of this REMAND. The need for a clinical examination is left to the examiner’s discretion. The examiner is asked to express a retrospective opinion on functional loss for the period from October 19, 2003 to April 12, 2017. In doing so, the examiner must answer whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use overtime or during flare-ups. The examiner should assess additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. The examiner also is advised that the Veteran reported flare-ups during his December 2005 and August 2009 VA examinations. As the opinion the examiner must provide is a retrospective opinion, the examiner will necessarily be unable to observe the Veteran during a flare-up or after repeated use over time. Nonetheless, the examiner should still estimate any additional functional impairment based on the evidence of record and the Veteran’s lay descriptions of repeated use or flares’ severity, frequency, duration, and/or functional loss manifestations. The examiner should consider the lay descriptions in formulating the opinion. If it is not feasible to determine the extent to which the Veteran experiences additional functional impairment on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why this is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. (Continued on the next page)   A complete rationale must be provided for all opinions expressed. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Mortimer, Associate Counsel