Citation Nr: 18155852 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 14-38 744 DATE: December 6, 2018 REMANDED Entitlement to an increased evaluation in excess of 10 percent prior to July 10, 2017 for lumbar spine disability is remanded. REASONS FOR REMAND The Veteran served on active duty from March 2004 to March 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. A September 2017 Board decision increased the Veteran’s evaluation of her lumbar spine disability to 40 percent, effective from July 10, 2017 forward. The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. In May 2018, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (JPMR), which moved to vacate and remand part of the September 2017 Board decision, the claim for entitlement to an increased evaluation in excess of 10 percent for a lumbar spine disability prior to July 10, 2017. The Court determined that the Board had erred because it did not ensure that the May 2011 and September 2014 VA examinations addressed whether the Veteran’s flare-ups caused functional loss, and that remand for a retrospective opinion was necessary to address the Veteran’s reports of lumbar spine flare-ups in those examinations for the time period prior to July 10, 2017. In April 2015, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. A transcript of that hearing is of record. Because the law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal, the Veteran was offered the opportunity for another hearing before another VLJ. 38 C.F.R. § 7107(c); 38 C.F.R. § 20.707. Since the Veteran did not respond within the 30 days required to request a new hearing, this appeal is assigned to another VLJ for adjudication. 38 C.F.R. § 19.3(b). The Board notes the existence of a separate appeal stream for this Veteran, which includes the claims for increased ratings for the lumbar spine, right hip, right lower extremity, posttraumatic stress disorder (PTSD), and a total disability rating based on individual unemployability (TDIU). But as that appeal is not yet certified before the Board, it will not be adjudicated here. Entitlement to an increased evaluation in excess of 10 percent prior to July 10, 2017 for lumbar spine disability is remanded. The Veteran has received VA examinations for her lumbar back disability in May 2011, April 2013, September 2014, and July 2017. In the May 2011 VA examination, the Veteran reported moderate back pain one to two days a week. The examiner did not provide any assessment as to additional functional impairment during flare-ups. In the September 2014 examination, the Veteran reported that some days she “woke up stiff and achy.” She also explained that she experienced a flare-up, described as at least one episode of acute sciatica in the right lower extremity. The examiner opined that the Veteran was not suffering from an acute flare-up of her back condition during the examination, and therefore, he could not provide the exact extent of range of motion loss of the back due to flare-ups without mere speculation. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Additionally, the Court has addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. As noted above, the Court in May 2018 directed the Board to remand for a retrospective opinion to consider whether additional functional loss during flare-ups could be determined in degrees of range of motion as contemplated in Mitchell and Sharp. Mitchell, 25 Vet. App. at 44; see Sharp, 29 Vet. App. at 33. See Chotta v. Peake, 22 Vet. App. 80, 84 (2008) (If a disability rating “cannot be awarded based on the available evidence,” VA must determine whether a medical opinion, including a retrospective opinion, “is necessary to make a decision on the claim.” Id. at 85; (emphasis in the original); see also Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated). Therefore, this appeal is remanded for a retrospective opinion to address the Veteran’s reports of flare-ups and any additional functional loss that could be determined in degrees of range of motion prior to July 10, 2017 based on her previous VA lumbar spine examinations, especially the May 2011 and September 2014 examinations highlighted by the Court. The matter is REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated VA medical records of the Veteran not previously obtained. Contact the Veteran and request that she identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 2. Obtain a retrospective opinion from a VA medical professional with expertise in orthopedics to address the nature and severity of the Veteran’s lumbar spine disability prior to July 10, 2017. The Veteran need not be scheduled for another VA medical examination unless needed to provide the requested medical opinion. The electronic claims file, to include the Veteran’s service treatment records, lay statements and testimony, and treatment records, should be reviewed by the examiner. A note that it was reviewed should be included in the report. Based on a review of the Veteran’s entire record, the examiner should opine as to whether any additional functional loss during flare-ups of the Veteran’s lumbar spine disability prior to July 10, 2017 could be determined in degrees of range of motion as contemplated in Mitchell and Sharp. Mitchell, 25 Vet. App. at 44 (concluding that an examination was inadequate because it “did not discuss whether any functional loss was attributable to pain during flare-ups, despite noting the appellant’s assertions [thereof]”); see Sharp, 29 Vet. App. at 33 (The examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves.”). Attention is invited especially, but not exclusively, to the VA lumbar spine examinations of May 2011 and September 2014, the ones highlighted by the Court in its JPMR, as to whether additional functional loss is caused by flare-ups for the time period prior to July 10, 2017. A detailed rationale supporting the examiner’s retrospective opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). 3. Thereafter, readjudicate the issue on appeal as noted above. If the determination remains unfavorable to the Veteran, she and her representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and her representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel