Citation Nr: 18157955 Decision Date: 12/13/18 Archive Date: 12/13/18 DOCKET NO. 10-47 975 DATE: December 13, 2018 REMANDED Entitlement to a rating in excess of 20 percent prior to July 29, 2015, for a low back disability is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1977 to January 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issue was previously remanded by the Board in June 2015 and June 2016 to the Agency of Original Jurisdiction (AOJ) for further development. In August 2017, the Board denied the Veteran’s claim for entitlement to a rating in excess of 20 percent prior to July 29, 2015, and in excess of 40 percent thereafter for low back condition. The Veteran appealed the August 2017 Board decision, specifically regarding the denial of a rating in excess of 20 percent for the low back disability prior to July 29, 2015, to the United States Court of Appeals for Veterans Claims (CAVC or Court). In June 2018, the Court granted a Joint Motion for Partial Remand (JMR), vacating and remanding this singular issue to the Board. Entitlement to a rating in excess of 20 percent prior to July 29, 2015, for a low back disability is remanded. The Veteran was afforded a VA examination in May 2009. In the June 2018 joint motion to remand, the parties agreed that the May 2009 VA examination was inadequate regarding the Veteran’s functional ability during flare-ups or after repetitive use over time. During the May 2009 VA examination, the Veteran reported that he had severe flare-ups, and that stooping, lifting, and bending caused flare-ups. The Veteran also reported that he had incapacitating episodes in the previous 12 months and had missed about three weeks of work in the past 12 months. The VA examiner stated that the Veteran’s functional impact was limitation of motion secondary to pain and then opined that repetitive motion did not increase the loss of range of motion, and it would be mere speculation to estimate the loss of range of motion with a flare-up. The examiner did not provide an explanation as to why any such opinion would require resort to speculation, and he gave no indication whether additional testing or information could enable a non-speculative opinion. As noted by the Court, if an examiner fails to provide a conclusive opinion because doing so would require speculation, the examiner “must explain the basis for such an opinion or the basis must otherwise be apparent in the Board’s review of the evidence.” Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Here, such an explanation was not provided for a conclusive opinion by the May 2009 VA examiner. As such, a remand is needed to obtain an adequate medical opinion as to the functional limitations caused by Veteran’s reported flare-ups or functional limitations after repeated use over a period of time, or to explain why one cannot be obtained and then to provide an adequate reasons and bases discussing Veteran’s reports of flare-ups in compliance with Mitchell and DeLuca. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The matter is REMANDED for the following action: Return the Veteran’s claims file to the VA examiner who conducted the May 2009 VA examination, or if unavailable, to another examiner with appropriate expertise, for an addendum opinion with respect to the results during the May 2009 VA examination as to the extent of the Veteran’s functional loss (i) after repetition over time and, separately, (ii) during flare-ups. The examiner should determine the additional functional loss the Veteran suffered during flares and after repetition over time by utilizing information in the medical records or other sources available to the examiner such as the May 2009 VA examination report and treatment records from the same period. To the examiner’s best ability, the additional range of motion loss should be described in degrees based on that information. If the examiner is unable to provide an opinion on the subject, he or she should clearly explain the basis for this decision. (Continued on the next page)   A complete rationale for all opinions rendered must be provided. If the examiner cannot provide an opinion without resorting to speculation, he or she 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. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Cheng, Associate Counsel